Courts

Supreme Court's Refusal To Hear DACA Challenge Is No Victory

It's not a stay of execution on DACA recipients, it's just giving Trump more time to figure out how to execute them properly.

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(Photo credit: Robyn Beck/AFP/Getty Images)

It looks like we’re going to continue playing hot potato with the lives of 700,000 to 800,000 people who were brought to this country when they were children.

The Supreme Court has declined to hear an expedited appeal by the Trump administration of the Ninth Circuit’s temporary injunction preventing the administration from ending the DACA program. The Court dismissed the Trump appeal without prejudice, and Trump will of course be able to appeal the Ninth Circuit’s ruling whenever the Circuit gets around to making a final judgment. That will probably happen sooner rather than later, but court watchers felt like this was the last reasonable chance the court would have to take up the DACA issue this term. Now, if the high court wants to weigh in on DACA, it probably won’t have the opportunity to do so before October of this year, at the earliest.

To put the entire procedural posture more simply: The Supreme Court decided to leave DACA recipients hanging onto a ledge by their fingernails, while Trump threatens to stomp on their hands and Democrats are afraid to get too close to the ledge.

I cannot emphasize enough that this Supreme Court decision to not hear the case is no victory for DACA recipients or decent people who think that hundreds of thousands of people should not be deported just because their parents brought them here illegally.

The Ninth Circuit’s temporary injunction stopping Trump from winding down the DACA program exists on the shakiest of grounds. The Ninth agrees that Trump has the power to wind down DACA — because he CLEARLY does. Their issue with him is the manner in which he is doing it. Even if the Ninth eventually says that Trump cannot end the program… via Twitter, and even if the Supreme Court eventually agrees with the Ninth Circuit, EVENTUALLY the buffoons running Trump’s legal operations will figure out how to end the program legally.

The problem with the Deferred Action for Childhood Arrivals program has always been that it’s not an act of Congress. It’s an executive decision on enforcement. It’s a great executive decision on enforcement, but at the end of the day, enforcement is in the purview of the executive branch. Courts can’t stop the executive from acting forever. They can tell the executive that he has to issue orders with his mouthparts instead of out of the back of his ass… but eventually the executive will figure out how to wield his immense power with a modicum of legality. And on that day, DACA recipients will be well and truly screwed.

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We can easily distinguish the DACA rollback from the travel ban. With the travel ban, Trump is trying to push through a change in the nation’s immigration laws, without an act of Congress. Courts can “check” the executive on that, because at core he’s trying to make an end run around Congress. Make no mistake, the travel ban/Muslim ban would probably be okay (from a legal perspective, not a moral one) if it were done through an act of Congress.

With DACA, all Trump is trying to do is change the previous administration’s enforcement policies. HE CAN DO THAT. He has to do it the right way, giving people enough time to adjust. But the only reason the DACA rollback is an issue for the courts is that Trump is too arbitrary and capricious to understand how to legally force-march 700,000 people out of the country. He’ll figure it out, eventually! Resting the fate of Dreamers on Trump’s executive stupidity is not a long term strategy for success.

DACA recipients are being toyed with. The Supreme Court just decided to let the game be played a little while longer.

Justices Turn Down Trump’s Appeal in ‘Dreamers’ Case [New York Times]

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Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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