The Supreme Court decision on Monday to decline a review of lower court rulings on President Donald Trump’s plan to end the Deferred Action for Childhood Arrivals program is not a victory for DACA or the White House’s plan to end its protections. It is, however, a victory for judicial process, and it was an appropriate decision.
When a federal District Court rules on a case, that ruling can be appealed to the Circuit Appellate Court for review. It is only after that review that the Supreme Court usually would hear that case. Last month, District Courts in California and New York City ruled that the government must continue accepting renewal of the DACA protections beyond the March 5 deadline. The Justice Department, wanting to see Trump’s deadline enforced, attempted to bypass the usual interim appellate review process by having the case go directly to the U.S. Supreme Court.
There is a Supreme Court rule that allows justices to hear cases not yet review at the appellate level: “Of such imperative public importance as to justify deviation from normal practice.” But the White House’s impatience with what some have called “judicial interference” has not yet been considered of great public importance. This administration has attempted on four occasions to shortcut the appellate process, but all have failed. In fact, the last time the high court took a case in advance of review by an appeals court was during the George W. Bush administration. That case had to do with sentencing and not presidential policy.
When the Supreme Court unanimously turned down the Trump administration’s request to prematurely hear the DACA case, it left in place a protection for the 800,000 immigrants under the DACA program, which was created during the President Barack Obama’s tenure, until at least the end of the year. However, it should be noted that the court did so “without prejudice,” which means that after an interim appellate court reviews the decision of the lower courts, the Supreme Court can, and probably will, grant a petition for review.
Hopefully, our immigration policy will be decided by Congress. If House and Senate members feel that it is in the best interests of the United States to repeal DACA, they should do so. If, on the other hand, it is the will of Trump and the Congress to include DACA as part of comprehensive immigration reform, it should do so and soon.
This is a matter of “imperative public importance,” but it should not be decided by our courts.
Sol Wachtler, a former chief judge of New York State, is a distinguish adjunct professor of law at Touro Law School.