WASHINGTON — The Justice Department said late Wednesday that it will soon ask the Supreme Court to rule on whether the government can shut down the DACA program, taking the case out of the hands of an appeals court if necessary.
Short for Deferred Action for Childhood Arrivals, DACA allows children of undocumented immigrants to remain in the U.S. if they were under 16 when their parents brought them to the U.S. and if they arrived by 2007. The Obama-era initiative has allowed 700,000 young people, known as "Dreamers," to avoid deportation.
The Trump administration moved to end the program a year ago, but federal courts have blocked that attempt. Following a brief hiatus, the government began accepting renewal applications from DACA participants, which must be filed every two years.
A federal court in San Francisco was the first to rule that the government acted illegally in trying to shut the program down. The government appealed that ruling to the 9th Circuit Court of Appeals, which heard oral arguments on May 15.
In a letter to the appeals court, Justice Department lawyer Mark Stern said if there's no ruling by Oct. 31, the government will ask the Supreme Court to take the case anyway.
"The district court's injunction has now been in place for more than nine months and, unless either this court or the Supreme Court promptly intervenes, it could remain in force for at least another year, given the Supreme Court's argument calendar," Stern wrote.
The Trump administration tried earlier this year to get the case before the Supreme Court while it was pending in the 9th Circuit. The justices refused that request in late February but said they assumed the appeals court would "proceed expeditiously to decide this case."
It normally takes at least two months to get a case to the Supreme Court, ready for the justices to consider whether to hear the appeal. But by mid-January, the court typically has filled up the argument calendar for the term, which ends in late June.
So as a practical matter, the government has a point that if the appeals court doesn't rule on the DACA issue until November or later, there would be little chance of getting the case on Supreme Court's docket in the current term.
However, the government could try to get the Supreme Court to take the case now anyway, even without telling the appeals court what it intended to do.
"I suspect they're doing this so that they can tell the Supreme Court, 'Well, we tried to get the appeals court to rule,'" said Steve Vladeck a law professor of the University of Texas at Austin and a former 9th Circuit clerk.
The Supreme Court rarely agrees to hear a case before the appeals court has ruled. But the government's chances might be better this time, given that the justices said they expected the case to move quickly.
Even so, the 9th Circuit takes an average of nearly 23 months to issue a final ruling, and only five months have elapsed since the DACA case was argued. A ruling by the end of the year might, in the 9th Circuit's time frame, be considered "expeditious."
Supporters of DACA have so far fared well in their legal fight to keep the program going. Courts in Washington and New York have also blocked the government from shutting it down. And in August, a federal judge in Texas declined a request from Texas and seven other states to order an immediate halt to the DACA program.