The Supreme Court denied an unusual request by the Trump administration to immediately rule on its executive action shuttering the Deferred Action for Childhood Arrivals program and launch the case to the highest court in the land without going through the full appeals process.
According to the New York Times, that decision, announced Monday, was expected, as the process the administration proposed using—an obscure Supreme Court procedure called “certiorari before judgment”—is generally only used in times of crises.
For now, as the administration appeals an earlier ruling from a federal district court judge, the Department of Homeland Security will continue to accept renewal applications beyond the March 5 deadline the administration had imposed. The administration does not have to accept new applications or allow current Dreamers—who number almost 700,000—back into the country if they leave.
Under the original administration decision in September, any of the Dreamers’ two-year work permits that expired after March 5 would not be renewed. The Trump administration justified its decision to end DACA by arguing that the Obama administration had overstepped its powers in creating the program in the first place.
But in January, in deciding a case brought by four states and the University of California system, Judge William Alsup of the federal district court in San Francisco ruled that the administration’s decision had been “arbitrary” and “capricious.” On Feb. 13, Judge Nicholas Garaufis of the federal district court in Brooklyn issued a similar ruling, finding the administration’s justifications for ending the program insufficient. As the administration appeals that first ruling, the nationwide injunctions on the order remain in place.
When the administration appealed its case, it also asked the U.S. Supreme Court to grant an immediate review so that it could skip the appeals court. According to attorney and Harvard instructor Kevin Russell, writing for SCOTUSblog, the procedure, certiorari before judgment, was used in the past for cases involving presidential wartime powers, as well as presidential power and privilege in other emergency situations—the Nixon tapes and the Iran hostage crisis, for example. In a brief, lawyers for the four states in the case argued that there was no national emergency in this instance to warrant the use of this procedure.
According to the Times, the solicitor general wrote in the administration’s brief that “an ongoing violation of federal law being committed by some 700,000 aliens” called for emergency action.