As SCOTUS denies certiorari in one DACA case, another 9th Circuit appeal remains pending

With the possibility of a legislative fix to the DACA debate looking dim and the U.S. Supreme Court's decision not to immediately consider a case that enjoined the Trump administration from ending the program, the fight over its legality and demise returns to the federal circuit and trial courts.

Language in the Supreme Court's certiorari denial and the history of litigation pertaining to the program suggest that it is likely the high court punted a case it could consider again soon.

When the court announced Monday that it would not grant the government's unusual request to leapfrog the 9th U.S. Circuit Court of Appeals and review directly an injunction issued by U.S. District Judge William Alsup of San Francisco, the justices specified that the request was denied without prejudice. Department of Homeland Security, et al. v. Regents of University of California, et al., 17-1003.

The high court also put pressure on the federal court of appeals to "proceed expeditiously to decide this case."

The 9th Circuit has already done that, requesting expedited briefing last month. Accordingly, the government filed its first brief and an answer from the plaintiffs is expected by mid-March.

However, the language the Supreme Court used in its denial of certiorari was, like the request before it, unusual.

"The two sentences together send a message that [the Supreme Court] probably [is] interested in this issue, but this isn't the right time," commented Arthur Hellman, who teaches about the federal judiciary at the University of Pittsburgh School of Law.

Technically speaking, Hellman noted, every certiorari petition denied by the court in cases at preliminary stages is done so with the opportunity to seek review again at a later point in litigation.

"This was a way of emphasizing that the denial of cert is not a ruling on the merits in any way," Hellman continued, adding that it took the court a week after considering the case at conference to announce its decision.

Though the Regents case is, for the time being, not in the purview of the Supreme Court, the justices do have another opportunity to weigh in on the legal and constitutional issues at hand in the DACA quagmire, an opportunity they lost two years ago when, after the death of Justice Antonin Scalia, the court split 4-4 on a case from the 5th Circuit that enjoined broader DACA and DAPA policies. United States v. Texas, 136 S. Ct. 2271 (2016).

Deadlocked, the 5th Circuit decision remained in place. But the Supreme Court was unable to issue guidance on the constitutionality or the legality of the program itself.

For nearly a year now, though, the high court has been considering a different certiorari petition, also from the 9th Circuit, that pertains to the bounds of DACA. And unlike the Regents case, which, preliminarily, is concerned with the legality of the process by which the Trump administration ended DACA, this other case cuts at the heart of the constitutionality of DACA and the authority of the executive.

The case, which started in Arizona, considers a state law prohibiting the issuance of drivers' licenses to people who are unable prove that they live in the country legally. A group of plaintiffs sued Arizona shortly after the DACA program was implemented and the case eventually made its way to the 9th Circuit, a three-judge panel of which affirmed an injunction blocking the Arizona requirement.

The 9th Circuit panel said that the state had overstepped its bounds by legislating immigration classification, which is the sole responsibility of the federal government.

When a call for an en banc rehearing of the case was denied, former Judge Alex Kozinski, joined by five members of the court's conservative wing, wrote a lengthy "dissental," arguing that because DACA was established through executive authority -- rather than through the legislative process -- the Constitution does not require states to be subordinate to purely executive decisions.

Since March, that case has sat at the Supreme Court's doorsteps with no answer from the court as to whether it will hear it or not. Brewer et al. v. Arizona Dream Act Coalition, et al., 15-15307.

In January, when the Regents case made its way to the high court, Arizona's solicitor general wrote to the Supreme Court, urging it to take both DACA cases.

"While all parties continue to wait for the [U.S.] solicitor general's response in this case, Arizona's statute remains enjoined on the assumption that DACA is federal law capable of preempting state law," Dominic E. Draye wrote on Jan. 22.

"If the court grants the petition in Regents of University of California, it may wish to consider Brewer at the same time," the state solicitor general continued.

Four weeks later, Noel Francisco, President Donald J. Trump's solicitor general, filed an amicus brief in Brewer at the court's request. He urged the justices to hold off on hearing the case until deciding whether to take Regents and to deny certiorari in Brewer if they shot down Regents.

"Arizona's opposition to DACA has largely been vindicated, and its concerns about the policy and its effects have been addressed," Francisco wrote, after noting that Attorney General Jeff Sessions and federal agencies had deemed the DACA program to be in violation of the law and ended it.

Francisco's brief opposing certiorari is an obstacle for Arizona, as the justices often defer to the solicitor general's opinions in cases in which they request briefing. But the state will likely have an opportunity to respond to the brief, which may take several weeks.

In the meantime, the lower courts will continue to grapple with the conflicting actions of two executives. A week after Alsup issued his injunction, U.S. District Judge Nicholas Garaufis of New York handed down a similar one, which will likely make its way to the 2nd Circuit. Batalla Vidal v. Nielsen, 16-CV4756 (E.D.N.Y. Feb. 13, 2018).

And hours after the Supreme Court denied the Regents petition Monday, U.S. District Judge Philip S. Gutierrez of Los Angeles held a hearing in a putative class action filed by several DACA recipients whose protections have been revoked by the government for criminal offenses.

Represented by the ACLU, the plaintiffs have sought to certify a class of plaintiffs whose DACA protections have been revoked and enjoin the government from terminating DACA work permits without process.

Gutierrez said Monday that, tentatively, he planned to certify the class and grant the injunction. Inland Empire-Immigrant Youth Collective, et al. v. Duke, et al., 17-CV2048 (C.D., Cal., filed Oct. 5, 2017).