The Supreme Court is now in the middle of two high-profile immigration cases: Travel Ban 3.0 and the DACA rescission.
The Court let President Donald Trump’s travel ban go in effect while litigation challenging the ban is pending, but the Court did nothing to overturn lower court rulings that have effectively stopped the President’s rescission of DACA while those cases are pending below.
In both the travel ban and the DACA cases, the Administration took the extraordinary step of seeking Supreme Court review before any Circuit Court opinions were issued, a procedure, called “certiorari before judgment.”
Travel Ban 3.0
In December, the Supreme Court, at the Administration’s request, allowed Trump’s Travel Ban 3.0 to go into effect, with litigation pending in both the 9th and the 4th Circuit Courts of Appeal. The Supreme Court indicated that it believed the lower courts would issue their decisions “with appropriate dispatch” hinting that it would then decide whether to grant certiorari.
The 9th Circuit upheld the district court injunction on December 22, 2017, in Trump v. Hawaii. On January 19th the Supreme Court agreed to hear that case. The Court asked the parties to brief a question that was not raised by the government, but was raised in Hawaii’s opposing brief: whether Trump’s travel ban proclamation violated the Establishment Clause. That question, however, was raised in the 4th Circuit in International Refugee Assistance Project (IRAP) v. Trump, and on February 15, 2018, the 4th Circuit held that the travel ban proclamation likely violated the Establishment Clause. IRAP has asked the Supreme Court to consolidate its case with that of Hawaii.
In the DACA case, the Supreme Court declined to step in while an appeal is pending in the 9th Circuit Court of Appeals (U.S. Department of Homeland Security v. Regents of the University of California), which effectively means the Administration cannot end DACA on March 5.
In its attempt to engage the Supreme Court, the Administration did not resort to the same tactic that it used in the travel ban case. In that case, the Administration asked the Supreme Court to block the district court injunctions while it considered certiorari. In the DACA case, the Administration asked the Supreme Court to review the case directly on its merits while the Administration pursued an appeal in the 9th Circuit. As with the travel ban, the Supreme Court noted: “It is assumed the court of appeals will proceed expeditiously to decide this case.” Although it is not clear when the 9th Circuit will issue an opinion and whether the Supreme Court would then grant certiorari, it is now unlikely that the DACA case would reach the Supreme Court before its next term.
In the meantime, Congress still has time to act.