The Department of Justice said it will ask the Supreme Court to intervene if an appellate court has not ruled by Oct. 31 on whether the Trump administration can end protections for “Dreamers” who are young immigrants in the country illegally.
In an Oct. 17 letter to the clerk of the 9th U.S. Circuit Court of Appeals in San Francisco, a Justice Department lawyer Mark Stern said the action would be necessary to give the litigation a chance of being heard by the Supreme Court in its current term, which ends in June.
The case at issue was brought by the University of California and others challenging the administration’s decision to end Deferred Action for Childhood Arrivals (DACA). The program was adopted by the Obama administration in 2012 and has allowed 700,000 young immigrants to remain and work in the United States, although they do not have legal status.
A federal district court in California issued a nationwide injunction requiring the government to continue the program and process renewals for existing participants until a final ruling was made in the case.
The government maintains DACA is not legal and has sanctioned “an ongoing violation of federal law” by its participants. It appealed the injunction to the 9th Circuit, which heard arguments in the case on May 15 but has not yet issued a ruling.
“If this court’s decision is not issued promptly,” said the letter, “the Supreme Court would not be able to review the decision in the ordinary course until next term at the earliest.”
It would be unusual for the Supreme Court to weigh in before the appeals court has ruled. In February, the Supreme Court declined to grant a previous petition asking it to review the lower court’s decision before the appeals court ruled.
The administration’s decision to end DACA was protested by some immigration advocates, business groups, colleges, and religious leaders, and subsequently challenged in the courts.
Other cases both challenging and supporting the government’s decision to end DACA are also working their way through the courts, making it almost certain that the Supreme Court will eventually decide the issue, unless Congress acts first.
In Texas, a lawsuit by more than half a dozen states is challenging the overall legality of DACA. The states pushed for a final ruling in September, paving the way for an appeal.
Earlier this year, Congress tried and failed to pass legislation legalizing Dreamers.
Lawmakers may get another shot at the issue after the Nov. 6 congressional election. Congress will have to consider spending proposals, and some leading lawmakers have suggested that funds for a wall along the border with Mexico could be passed in conjunction with wider immigration reform.
President Donald Trump blamed Democrats’ unwillingness to negotiate for Congress’ failure on immigration reform.
