The Trump Department of Justice sought Monday to have the U.S. Supreme Court step in to put a halt to legal battles in three jurisdictions over the decision to wind-down an Obama-era immigration program in 2017.
In a writ of certiorari before judgment, DOJ attorneys announced the move seeking the high court’s intervention in cases before the U.S. Court of Appeals for the Second, Ninth and D.C. circuits. All three circuits have decisions from lower courts that concluded the rescission of the Deferred Action for Childhood Arrivals “either is or likely is unlawful,” according to the DOJ’s filing.
“Those decisions are wrong and they warrant this court’s immediate review,” the government stated.
In a statement issued via Twitter, New York State Attorney General Barbara Underwood, who leads a suit by more than a dozen state plaintiffs challenging the DACA recession, said the DOJ “has shown a remarkable lack of respect for the judicial process by repeatedly seeking to skip over the lower courts and, rather, go straight to the Supreme Court.”
As it stands, New York’s suit is bound to another suit filed by private parties in the Second Circuit, up on interlocutory appeal from the U.S. District Court for the Eastern District of New York. As the DOJ filing noted, the Second Circuit is expected to file petitions for writs from all three jurisdictions “to ensure that the court has an adequate vehicle in which to resolve the questions presented in a timely and definitive manner.”
Part of the DOJ’s urgency comes from nationwide preliminary injunctions issued by U.S. District Judge Nicholas Garaufis of the Eastern District of New York and U.S. District Judge William Alsup of the Central District of California. Both injunctions halted the recession process, even while allowing the Department of Homeland Security to cease enrolling new DACA recipients.
The DOJ argued in its brief that its decision to dismantle the DACA program was supported by a 2015 order in United States v. Texas, out of the Fifth Circuit. That decision, by upholding a lower court’s injunction, effectively put an end to DACA sister programs. The underlying logic of Texas has been used by the DOJ and other executive agencies and departments to attack DACA, which they claim suffers from the same legal infirmities identified by the Fifth Circuit.
In a statement, U.S. Attorney General Jeff Sessions argued that since the Obama administration “started DACA without a mandate or even an authorization from Congress or the courts; this administration can therefore end DACA at any time.”
“That is what we have done, and it was the lawful thing to do. Immigration law in this country—and the status of DACA recipients in particular—ultimately must be settled by our representatives in Congress,” Sessions said. “The Department of Justice should not have been forced to make this filing today—the Ninth Circuit should have acted expeditiously, just as the Supreme Court expected them to do—but we will not hesitate to defend the constitutional system of checks and balances vigorously and resolutely.”