Originally published by The Washington Post
The Supreme Court declined Monday to intervene in a legal battle over the fate of the “dreamers” under President Trump, effectively extending a temporary reprieve to young undocumented immigrants shielded from deportation and providing Congress more time to come up with a legislative solution.
The high court rejected the Trump administration’s unusual request to bypass an appellate court and review a lower court’s injunction that has blocked Trump from terminating the Obama-era Deferred Action for Childhood Arrivals (DACA) program.
The lower court said the nearly 700,000 people already in the program may continue to apply for renewals of their work permits indefinitely beyond a March 5 deadline Trump set for most of them to expire. The administration is not required to accept new applicants for the program.
Even as immigrant-rights advocates hailed the news, they emphasized that DACA recipients remain in limbo and fretted that lawmakers would be lulled into a false complacency after failing to strike a legislative deal this month.
“We need to give young immigrants who came to our country as children permanent assurance that they are safe here, and we need to give them this peace of mind now,” former vice president Joe Biden wrote on Twitter. “They shouldn’t have to spend another day living with fear and uncertainty.”
Some senior Republicans said the court’s decision also puts the onus on Congress to act.
“It would be foolish to take, sort of, false confidence or hope that somehow the courts are going to save us from having to make a decision,” said John Cornyn of Texas, the Senate’s second-highest-ranking Republican.
But both sides in the debate acknowledged there appears to be no clear path for a legislative solution and predicted that the lack of a hard deadline over DACA would reduce pressure on lawmakers, ensuring that dreamers will remain a tense political issue heading into November’s midterm elections.
“This takes away the urgency to do something,” said Mark Krikorian, executive director of the Center for Immigration Studies, which supports reducing immigration levels. “Everybody will be like, ‘Let’s kick the can down the road and deal with it whenever.’ ”
Trump, who over the past week has tried to blame Democrats for the failure of a deal on the dreamers, offered a muted reaction to the court’s decision. “We’ll see what happens,” he said during a meeting with governors Monday at the White House.
In a statement, White House spokesman Raj Shah called the DACA program “clearly unlawful” and suggested that a San Francisco judge’s injunction in December represented an “usurpation of legislative authority.”
He added, “The fact that this occurs at a time when elected representatives in Congress are actively debating this policy only underscores that the district judge has unwisely intervened in the legislative process.”
Although the Supreme Court said it expects the appeals court to act quickly, legal analysts said the litigation could take months. It is extremely unlikely that the high court would agree to take the case before the next term, which begins in October.
Efforts to address the fate of dreamers have bogged down in Congress since four immigration bills that would have provided a path to citizenship for up to 1.8 million dreamers were defeated in the Senate two weeks ago. Among them was a proposal from Sen. Charles E. Grassley (R-Iowa) that included deep cuts to legal immigration and was supported by the White House. The Trump administration strenuously opposedan alternative bill offered by a bipartisan group of 16 senators, saying it would have weakened border control.
The House is continuing to consider its own immigration plans, and some lawmakers have discussed a temporary fix to extend the DACA program for a year or more by adding language to a spending package next month.
Marielena Hincapié, the executive director of the National Immigration Law Center, which has sought to protect dreamers, said there are “definitely people on both sides who’ve shown a genuine interest in solving this.”
But she added that Trump, who last year expressed empathy for the dreamers, has not acted in good faith in terminating DACA and then opposing bipartisan proposals from Congress.
“There’s a credibility deficit for this president in the immigration community,” Hincapié said. “The big question mark is whether the president himself wants a solution.”
Former president Barack Obama created DACA through executive action in 2012, offering renewable, two-year work permits to young undocumented immigrants who met educational and residency requirements. Last fall, in the face of a legal challenge from Texas and several other Republican-led states, the Trump administration said the program was unconstitutional, and the president announced plans to terminate it.
U.S. District Judge William Alsup in San Francisco ruled in December that plaintiffs challenging the decision are probably right that the way the administration is ending the program violates the Administrative Procedure Act, because it is arbitrary and capricious.
A nationwide injunction is warranted, Alsup said, because “our country has a strong interest in the uniform application of immigration law and policy.”
This month, a district judge in New York came to an almost identical conclusion in a separate case brought against the administration by immigrant-rights groups.
No appellate court has reviewed those decisions, and it would have been exceedingly rare for the Supreme Court to take up a case without that interim step. In the past, the court has granted such cases only in matters of grave national importance, such as the controversy over President Richard M. Nixon’s White House tapes or solving the Iranian hostage crisis.
The administration could try to restart the process to end the program in a way that the courts would accept, by providing more context for its decision. But the administration has already signaled it opposes having to turn over material relating to the decision, such as White House memos.
“I think the decision puts more pressure on Congress and the White House to come up with a solution,” California Attorney General Xavier Becerra (D), who was among the group that challenged the administration’s decision, said in an interview Monday.
He added that the fact the Supreme Court will not likely consider the case until the fall provides more time for lawmakers to come up with a good deal that is not rushed because of time constraints.
But the reaction on Capitol Hill showed lawmakers seeking to shift blame on the impasse.
“The need for the Dream Act is no less urgent following the Supreme Court’s decision,” Sen. Richard J. Durbin (D-Ill.) said in a statement. “Now it’s up to the President and Republican leaders in Congress to take yes for an answer and accept any of the six bipartisan solutions on the table to save these young people.”
AshLee Strong, a spokeswoman for House Speaker Paul D. Ryan (R-Wis.), said the House leadership is continuing to build support for an immigration plan offered by Rep. Bob Goodlatte (R-Va.). That plan is opposed by Democrats.
“While the court’s decision appears to have pushed this deadline beyond March, House Republicans are actively working toward a solution,” Strong said.
Trump has sought to blame his rivals, too, asserting in a tweet over the weekend that “Dems are no longer talking DACA!” and adding that “Republicans stand ready to make a deal!” Administration officials said Trump intends to visit San Diego in mid-March to view prototypes for a potential wall on the border with Mexico, for which he has yet to win congressional funding.
Immigrant-rights advocates said Republicans will ultimately be blamed by voters in November if a deal is not reached. Polls show broad public support for allowing the dreamers to remain in the United States.
“The president’s efforts to play the blame-game are bordering on silly,” said Cecilia Muñoz, who served as the White House domestic policy adviser under Obama. “They created this crisis. Their motivations are very clear.”