DACA Case Headed to the Next Level or Two

February 19, 2018 9:43 am
by David Jakeman

The DACA rollercoaster continues hurtling forward. The Justice Department announced on Tuesday, January 16, 2018, that it would appeal the recent court decision that halted the Trump administration’s shuttering of DACA. Vancouver immigration lawyers and advocates are closely following the latest developments.

The Justice Department is appealing the case to the 9th Circuit Court of Appeals, but it is taking an additional, unusual step: it is appealing directly to the Supreme Court to rule on the case.1 Usually, cases only reach the Supreme Court after they have been heard by a court of appeals and then contested. US Attorney General Jeff Sessions said they had decided to take the rare step of a direct review by the Supreme Court so that the issue could be resolved quickly and fairly for all participants.2

However, if the Supreme Court follows its usual schedule, the DACA case is not likely to be dealt with immediately. It would take months to even schedule the case, even if the Supreme Court decided to conduct a direct review, as the Justice Department is requesting. It is, however, a short time frame than having it be appealed in the 9th Circuit and then appealed to the Supreme Court. At any rate, it’s not likely to be resolved any time soon.

The case in question was brought by the University of California system, headed by former Department of Homeland Security Janet Napolitano. It argues that rescinding DACA is a violation of beneficiaries’ rights because the decision was driven by nothing more than executive whim. The district court judge, William Alsup, agreed. However, the Trump administration argues that the program was illegally implemented and lies outside of the powers of the Executive branch and that it is Congress’ responsibility to change the law, not the president’s.

The political and legal issues of DACA are knotty, both with regards to the scope of executive action and to the appropriate response of the judiciary. Observers note that more and more lawsuits contesting executive policies are being filed, with consequences for the entire country, not just with DACA. During Obama’s tenure, lawsuits pushed back on executive actions concerning overtime pay, transgender rights, and other areas. During Trump’s tenure, the cases have been about the travel restrictions and immigration decisions. People from either end of the spectrum are questioning the use of a single, sympathetic court to put a stop to legislation they are opposed to. However, there seems to be no stop to the practice, given how many different DACA cases have been filed.


1 – https://www.politico.com/story/2018/01/16/doj-to-appeal-ruling-that-blocked-trumps-daca-wind-down-341183
2 – https://www.nytimes.com/2018/01/16/us/politics/trump-administration-daca-appeal-supreme-court.html

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