DACA Goes to the Supreme Court

December 11, 2018

IRLI takes on an appellate ruling prolonging the DACA program

WASHINGTON – Across the country, activist federal district courts have been issuing nationwide injunctions blocking the Trump Administration from ending the Deferred Action for Childhood Arrivals (DACA) program. The courts’ rationales have varied; in California, a federal district court struck down the rescission because, the court ruled, the Department of Homeland Security (DHS), which rescinded the program because it thought it was unlawful, got the law wrong. DACA is lawful, the court claimed, and because DHS rescinded it on grounds of unlawfulness, it abused its discretion.

The case was then appealed to the Ninth Circuit Court of Appeals, which agreed with the court below: because DACA is lawful, DHS acted arbitrarily and capriciously when it rescinded it for being unlawful. The Trump Administration immediately petitioned the Supreme Court for review, and the Immigration Reform Law Institute (IRLI) last week filed a friend-of-the-court brief urging the Court to grant review and reverse the Ninth Circuit.

Ironically, IRLI agrees with both the Ninth Circuit and the district court that the legality or otherwise of DACA is important, and should be decided by the Court. In fact, IRLI argues in its brief that the Court has an obligation to decide whether DACA is lawful, because it has a duty to consider its own jurisdiction – and if DACA is unlawful, the Court lacks jurisdiction and should order the case dismissed. If the Court agrees, of course, DACA is over – sooner rather than later.

“The problem plaintiffs have always had in this case is that they can’t really win,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Since DACA is unlawful, as has already been found by another circuit court, the Fifth Circuit, it can’t be reinstated even if Trump’s rescission of DACA is blocked. In that case, the Court could only go back to the world pre-DACA. Since that wouldn’t help the plaintiffs at all, their injury can’t be redressed by the Court, and that means the Court lacks jurisdiction. The Ninth Circuit’s view that DACA is lawful is an outlier, and we doubt the Supreme Court would agree,” Wilcox added. “So we are hoping the Court takes this case on, holds squarely, while assessing its own jurisdiction, that DACA is unlawful, and so resolves all the various pending DACA suits with one stroke.”

The case is Regents of the University of California v. DHS, No. 18-587 (S. Ct.).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]