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SCOTUS and DACA: What Comes Next?

By Theresa Cardinal Brown

Monday, February 26, 2018

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On February 26, the Supreme Court denied the request of the Department of Justice to take a direct appeal of a case out of California that challenged the Trump administration’s cancellation of the Deferred Action for Childhood Arrivals, or DACA, Program. This means that the administration must continue to accept applications for renewal of DACA status from those who currently are in the program, but does not require it to accept any new cases. So, what happens next?

What was the court case about?

The plaintiffs challenged that the administration did not follow proper administrative processes when ending the program. The California District Court issued an injunction while it decided the case that required the government to continue processing renewal applications while it considered the arguments. The judge in that case said that the government’s decision to end the program was based on faulty legal reasoning and so was done in an “arbitrary and capricious” way. More recently, in a separate case in New York, another federal judge ruled similarly, also issuing an injunction.

Notably, neither case argued that the Trump administration did not have the authority to end the program, just that they did so improperly.

What did the Supreme Court do?

The government asked the Supreme Court to let it skip the normal appeals of these decisions to the circuit appeals courts and rule on the case directly. This is a highly unusual move and one that the Supreme Court rarely does. The government argued that the lower court injunctions were beyond the scope of those judges to issue. But the Supreme Court decided it would not take the case now, and told the government to appeal the case through the lower courts, and asked the lower courts to rule quickly.

This ruling leaves in place the lower court injunctions that require the government to keep accepting DACA renewal applications.

What does this mean for DACA recipients?

Under the lower court injunction, those who had DACA could apply to extend their status for another two years. However, the government was not required to accept, and is not currently accepting, any new applications for DACA status. The government also stopped issuing permits to travel abroad and return for DACA recipients, as it had done under the Obama administration.  

For anyone who had DACA status that expired, they may be able to apply to get it back.  But they don’t have any work authorization or protection until they are granted status again.  Anyone whose status expires before their renewal is adjudicated by the government will have a period in which they can’t work and might be deported. 

What about the March 5 deadline?

The lower court injunctions put the March 5 deadline set by the Trump administration on hold. Trump had said that after that date, there will be no more DACA renewals. However, the injunctions require the government to continue to accept and adjudicate renewal applications. Unless an appeals court removes the injunction before March 5, that date has little meaning.

What does the Supreme Court ruling mean for legislation for Dreamers?

Congress has been trying to agree on a legislative solution for DACA and some additional DREAMers but has so far been unable to come to agreement. The Senate tried to vote on several different packages in February, but none garnered the needed 60 votes. The March 5 deadline had been used by the administration and proponents and advocates alike to try to push action on legislation.

The Supreme Court’s decision to let the injunction stand and let the issue play out through the lower courts takes the pressure off the March 5 date, but there still seems to be a desire by the administration and Congress to address the decision. The government funding deadline of March 22 seems to be the next opportunity for at least some sort of temporary measure to be adopted by Congress. 

Does the Supreme Court decision provide some relief for DACA recipients?

Not necessarily. Yes, the government must still accept applications for renewal, and the March 5 date is no longer a deadline, however, now the decision of when or how DACA will end is with the courts. The courts could take weeks or months to rule, but if the ruling is in favor of the administration, the program could end very abruptly, with no final opportunity to apply for extension. So, the DACA program remains in limbo, with no certainty for its recipients.

Also published on Medium.