DOJ appeals DACA order to 9th Circuit, promises to seek high court review soon

The U.S. Department of Justice took an unusual step in litigation over the Deferred Action for Childhood Arrivals program Tuesday, filing a notice of appeal to the 9th U.S. Circuit Court of Appeals while simultaneously announcing it would seek to skip review from that court by requesting certiorari before the U.S. Supreme Court this week.

The decision to appeal comes a week after U.S. District Judge William Alsup of San Francisco stopped President Donald J. Trump’s efforts to end the program known as DACA.

Alsup enjoined the government from dismantling the program, which prohibits deportation of young adults who were brought into the county illegally when they were children.

The judge ordered the government to continue accepting applications for the program while the litigation continues over the Trump administration’s decision to end it. Regents of University of California et al. v. United States Department of Homeland Security et al., 17-CV05211 (N.D. Cal, filed Sept. 8, 2017)

Attorney General Jeff Sessions blasted Alsup’s Jan. 9 order, saying in a statement that “it defies both law and common sense for DACA … to somehow be mandated nationwide by a single district court in San Francisco.”

Sessions made note of the fact that the program was instituted unilaterally by President Barack Obama after Congress did not pass legislation the former president sought.

If the Supreme Court decides to hear the case, it would do so under a rarely-used law which allows the court to review federal cases before a final judgment is rendered so long as the case has made its way to a court of appeals.

Filing a notice of appeal fulfills this requirement, said Arthur Hellman, an expert on the federal judiciary who teaches at the University of Pittsburgh School of Law.

Though rare, the Supreme Court has used this mechanism to hear cases concerning the most pressing of national matters over the decades.

Most notably, the court granted review in cases that had not made their way through the circuit system when President Richard M. Nixon refused to comply with a subpoena requiring him to give White House tapes to the special prosecutor during the Watergate scandal and when President Ronald Reagan moved litigation concerning President Jimmy Carter’s decision to freeze Iranian assets in the United States during the Iran hostage crisis to an arbitration tribunal.

In both situations, the court decided to hear the cases without an intermediate court of appeal weighing in.

Whether the Supreme Court decides to take such a politically charged case remains to be seen. It has continued to avoid ruling on Trump’s contentious travel ban, despite the 9th Circuit’s willingness to do so.

Both the travel ban and the DACA litigation address the scope of executive power, an increasingly exercised tool under the Bush, Obama and Trump administrations.

An attorney representing plaintiffs in the DACA suit said he thought the special action taken by the DOJ was unneccessary in this case.

“This is another example of the administration throwing things out the window with respect to the judicial procedures in this country,” said Mark Rosenbaum, an attorney at Public Counsel who represents several individual DACA recipients in the lawsuit along with Ethan Dettmer of Gibson, Dunn & Crutcher LLP.

“These young people don’t represent any threat to the wellbeing of this country; the government has vetted all of them,” Rosenbaum said. “There’s no need for bypassing the judicial procedures. Their continued presence is not a national crisis.”

He said that he will fight to keep the case at the 9th Circuit.

In filing for Supreme Court review, the Department of Justice is likely seeking to get the case on the court’s calendar before it stops granting certiorari for this term and to avoid appearing before a circuit court that has been a thorn in the side of the Trump administration’s agenda over the last year.

The president himself tweeted his disdain for the 9th Circuit court the day Alsup issued his order, writing, “It just shows everyone how broken and unfair our Court System is when the opposing side in a case (such as DACA) always runs to the 9th Circuit and almost always wins before being reversed by higher courts.”

The 9th Circuit has affirmed district court orders blocking Trump’s numerous travel bans on three occasions and affirmed discovery rules sought by the plaintiffs in the DACA case.

Adding to the significance of the case are efforts in Washington, D.C. to reach a compromise over legislation that would enshrine DACA protections against deportation in law.

Alsup’s order came shortly after Trump held a publicly televised negotiation session with Democratic and Republican lawmakers that ended with uncertainty over how Congress intended to proceed on immigration legislation.

If the Department of Justice is successful in defending its suit, the DACA program will end as its sister program, Deferred Action for Parents of Americans, or DAPA, began: with litigation.

In 2014, when Obama announced a policy that would prevent deportation of millions of people illegally in the country but with American-born children, U.S. District Judge Andrew S. Hanen of the Southern District of Texas, enjoined the program.

The case made its way to the Supreme Court in 2016, which split four to four, issuing an order that read simply, “The judgment is affirmed by an equally divided court.”

The decision created no case law, but left Hanen’s decision in place and allowed litigation over DAPA to proceed. Last June, then Secretary of Homeland Security John F. Kelly rescinded the program, ending the case.