In an apparent bid to bypass the liberal Ninth Circuit Court of Appeals and seek an immediate resolution to its effort to end the Obama-era Deferred Action for Childhood Arrivals (DACA) program, the Trump administration on Monday made the unusual decision to ask the Supreme Court to take over three cases concerning pending lawsuits that seek to preserve DACA.
A three-judge panel at the San Francisco-based federal appellate court heard arguments in May on whether the administration could end DACA, and the federal government had warned it would ask for high-court intervention if the appeals court did not decide by last Wednesday.
DACA, which was created after President Barack Obama signed an Executive Branch memorandum, gives some illegal immigrants who were brought to the United States as children the opportunity to receive a renewable two-year period of deferred action from deportation and become eligible for a work permit.
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The Trump administration last year announced its plan to phase out the program, but federal courts have ruled variously that the phase-out could not apply retroactively and that the program should be restarted.
The White House fiercely condemned those court decisions, which were premised on the idea that the Executive Branch cannot arbitrarily phase out a right that individuals have come to rely on, simply by arguing that the right was established illegally without Congressional approval. (DACA proponents have also argued that Trump's planned termination of the program violates federal law requiring adequate notice-and-comment periods before certain federal rules are changed, as well as other constitutional equal protection and due process guarantees.)
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The Justice Department wants the justices to use their authority to decide the matter without waiting for lower courts to rule. It is rare the high court grants such a so-called fast-track petition before all the lower courts have weighed in on the merits.
"The last administration started DACA without a mandate or even an authorization from Congress or the courts; this administration can therefore end DACA at any time,” Attorney General Jeff Sessions said in a statement Monday night.
He added: "That is what we have done, and it was the lawful thing to do. Immigration law in this country—and the status of DACA recipients in particular—ultimately must be settled by our representatives in Congress. The Department of Justice should not have been forced to make this filing today—the Ninth Circuit should have acted expeditiously, just as the Supreme Court expected them to do—but we will not hesitate to defend the Constitutional system of checks and balances vigorously and resolutely."
Earlier this year, the Trump administration similarly attempted to jump the line and appeal to the Supreme Court after another lower court ordered that DACA resume. “It is assumed that the Court of Appeals will proceed expeditiously to decide this case,” the Supreme Court ruled in rejecting the White House's request in February.
DHS v UC Petition by Fox News on Scribd
There was no initial timetable from the justices on when they would decide whether to grant the Trump administration's latest petition.
The cases are DHS v. Regents of the University of California (18-587) (CA9); Trump v. National Association for the Advancement of Colored People (18-588) (CADC); and Nielsen v. Vidal (18-589) (CA2). The Trump administration is seeking to convince the Supreme Court to consolodate those cases because they make the same substantive objections to the planned DACA recession, and toss them all out on the merits.
Fox News' Gregg Re and Jake Gibson contributed to this report.
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