A rally at the Supreme Court against the Trump administration’s effort to ban immigration from seven Muslim-majority countries.
As Congress and the White House quarrel over the fate of 690,000 so-called Dreamers, two veteran U.S. Supreme Court advocates are urging the justices to reject the Trump administration’s effort to get them involved now in the related legal fight.
Covington & Burling partner Robert Long Jr. and Gibson, Dunn & Crutcher partner Theodore Boutrous, joined by California Deputy Solicitor General Michael Mongan, are leading the high court defense of the Deferred Action for Childhood Arrivals program, commonly known as DACA, created by the Obama administration in 2012. The program delays the deportation of certain young people brought to America as children.
U.S. Solicitor General Noel Francisco has asked the high court to review the legality of the Trump administration’s decision to terminate DACA and to do so before an appellate court has acted on the government’s appeal of a federal district court’s preliminary injunction blocking the program’s termination. The government seeks what is known as “cert before judgment.” It is reserved for extraordinary cases and has been rarely granted by the high court, the last time nearly 30 years ago.
The justices are scheduled to consider the government’s petition in Department of Homeland Security v. Regents of University of California at the court’s Feb. 16 conference. The government is urging the high court to expedite briefing and arguments so a decision can be issued in the current term. If the justices agree, the district court’s nationwide injunction, preserving the program’s status quo, would remain in effect until a decision is issued.
Just how the debate over DACA in Congress affects the high court’s calculus on whether to hear the government’s petition is unclear. The justices could choose to delay acting on the petition to see if Congress resolves the Dreamers’ situation. They also could grant review, proceed with the case, and deal with any political changes as they may happen.
The most recent similar situation where politics and law collided involved the Trump administration’s so-called travel ban 2.0. The high court had planned to hear arguments on the legality and constitutionality of that immigration executive order in October, but it cancelled those arguments when the president issued a new and broader ban. The justices will hear arguments on the latest travel ban—Trump v. Hawaii—in April.
The DACA case is not the “extraordinary” situation required to “leapfrog” the appellate process, according to the program’s defenders, who recently filed their responses to the government’s petition.
“There is no need for immediate review,” Boutrous, co-chair of Gibson Dunn’s litigation group, wrote on behalf of six DACA recipients. “The appeal has been expedited, and the government cannot credibly claim harm when it has not even bothered to seek a stay. This court should not rush in, especially because Congress currently is considering whether to provide a permanent solution for the Dreamers, and the president has stated that he supports allowing the Dreamers to remain in the United States.”
Theodore J. Boutrous Jr. Credit: Diego M. Radzinschi/ NLJ
The Gibson Dunn team working with Boutrous, counsel of record, includes Nicole Saharsky, who joined the firm late last year from the U.S. Solicitor General’s office. Saharsky has argued more than two dozen cases in the Supreme Court.
Long, co-chair of Covington’s appellate and Supreme Court group, represents the regents of the University of California. Mongan is counsel to California, three other states, San Jose, Santa Clara County and SEIU Local 521. They contend the government has not shown the existence of any emergency. The government, they noted, did not seek a stay of the district court injunction.
But Francisco contends in the high court: “Without this court’s immediate intervention, the [district] court’s injunction will persist at least for months while an appeal is resolved and, if the court of appeals does not reverse the injunction, it could continue for more than a year given the court’s calendar.”
A stay of the district court injunction, Francisco wrote, “would not address the institutional injury suffered by the United States of being embroiled in protracted litigation over an agency decision that falls squarely within [Department of Homeland Security's] broad discretion over federal immigration policy and that is not even judicially reviewable.”
In September, U.S. Attorney General Jeff Sessions and Deputy Secretary of Homeland Security Elaine Duke announced the administration’s termination of the DACA program. Shortly afterwards, five related lawsuits challenging the termination were filed in the U.S. District Court for the Northern District of California.
The challengers argued that DACA’s rescission violated the Administrative Procedure Act and due process, and denied DACA recipients the equal protection of the laws.
In the Supreme Court, Francisco’s petition urged the justices to decide whether the decision to end the DACA program is judicially reviewable and whether the decision is lawful.
Amicus briefs supporting the government were filed by Texas and 10 other states; Eagle Forum Education & Legal Defense Fund; Citizens United, English First, Gun Owners of America and others. No briefs supporting the government’s opponents have been filed yet.
Challenges to the rescission of the DACA policy are currently pending before courts in the Second, Fourth, Ninth, Eleventh and District of Columbia Circuit. The plaintiffs in nearly all of them are seeking similar nationwide injunctions, according to the government.
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