By deciding to do nothing, the Supreme Court may have saved the Deferred Action for Childhood Arrivals program—at least for the the time being.
On Tuesday, the Supreme Court announced which cases it would hear in its next session. Though the Trump administration had petitioned the nation’s highest court to take up the constitutionality of the president’s attempt to repeal DACA, the court decided to neither grant nor deny the administration’s request, meaning that the issue will continue to proceed through lower courts.
This means that DACA, the Obama-era program that protects over 700,000 young undocumented immigrants from deportation, will remain in place. Though the Trump administration attempted to end DACA in September of 2017, federal judges in California and New York issued injunctions preventing the repeal. With the Supreme Court’s decision not to make a decision on Tuesday, those injunctions will remain in place. This means that current DACA recipients remain protected and may renew their existing applications, even though new applications to the program are no longer being accepted.
Many pro-DACA advocates greeted the Supreme Court’s non-decision with optimism. “The reason you’re seeing a sigh of relief from [many advocates] is because this means that, for the time being, it’s extremely unlikely that the court will be able to take up the question of DACA in this term. The timing won’t allow it,” says Araceli Martínez-Olguín, staff attorney at the National Immigration Law Center. Before the Supreme Court weighs in, the lower courts’ injunctions will remain in place, meaning that DACA recipients are likely safe until the high court hears a case on the program. Even if a different lower court rules in President Donald Trump’s favor against DACA, the matter won’t reach a final conclusion until the Supreme Court weighs in.
Martínez-Olguín says that she and other immigration legal experts are “trying to read the tea leaves” and predict what might come next for DACA and the Supreme Court. The court’s decision to neither grant nor deny certiorari (a review of the lower court decision) did not elucidate the justices’ reasoning. Though she says one can’t be sure, Martínez-Olguín thinks the justices are likely waiting for the lower courts to finish their proceedings and issue decisions on DACA. There are currently five different court cases considering aspects of DACA and the repeal winding their way through lower courts. Four of those cases deal with the legality of the repeal, while one case in Texas questions the legality of the program itself.
“The Trump administration’s petition for cert was an out of place legal request,” Martínez-Olguín says. She explains that it’s highly unusual for an administration to ask the Supreme Court to adopt a case before lower courts have even issued their opinions.
What does this mean for DACA’s immediate future? Martínez-Olguín says that the next key date will be February 17th, when the Supreme Court justices will again look at which cases they might take up. If four justices decide to grant cert to one of the DACA cases, it will enter the court’s schedule. However, Martínez-Olguín says it’s likely that the court won’t find room to hear arguments for the case until its new term, which begins in October.
“Arguments would likely not happen until the fall,” she says. “That means that an actual decision would likely not come until spring or summer of 2020.”
Many advocacy groups, including the NILC and United We Dream, encouraged DACA recipients whose DACA status expires before 2020 to renew as soon as possible. “Renew, renew, renew,” Martínez-Olguín says. She notes that advocacy organizations like United We Dream might be able to provide funding assistance to recipients who can’t afford the $495 early renewal fee.
As DACA recipients and their advocates experience cautious optimism now that the program, while not safe, has at least been thrown a lifeline, some think the Supreme Court’s move might affect the current political battle over the partial government shutdown. In an attempt to negotiate funding for his border wall, Trump on Saturday unveiled a deal that would offer temporary protection for DACA recipients in exchange for border wall funding. Trump’s proposed deal—seemingly dead on arrival as Democratic leaders immediately rejected it—may now carry even less weight, since the injunctions protecting DACA recipients could last through the year. “His bargaining power is definitely weakened,” Martínez-Olguín says.
