Supreme Court looks likely to pass on DACA case that Trump predicted would strengthen his hand in shutdown talks

  • President Donald Trump's expectations that the U.S. Supreme Court would hand him a win in negotiations over the ongoing partial government shutdown now look likely to come to nothing.
  • The justices on Tuesday took no action on a case before them concerning the legality of the administration's decision to end the Obama-era immigration policy known as Deferred Action for Childhood Arrivals, or DACA.
  • The inaction effectively allows the program to continue, reducing Trump's already limited leverage in a high-stakes impasse over money for his proposed border wall.
Demonstrators raise their fists in protest of President Trump's attempts to end the Deferred Action for Childhood Arrivals (DACA), an executive action made by President Obama that protected minors known as Dreamers who entered the country illegally from deportation, outside of the U.S. Capitol in Washington, March 5, 2018.
Samuel Corum | Anadolu Agency | Getty Images
Demonstrators raise their fists in protest of President Trump's attempts to end the Deferred Action for Childhood Arrivals (DACA), an executive action made by President Obama that protected minors known as Dreamers who entered the country illegally from deportation, outside of the U.S. Capitol in Washington, March 5, 2018.

President Donald Trump's expectations that the Supreme Court would hand him a win in talks over the government shutdown now look likely to come to nothing.

The justices took no action Tuesday on a case before them concerning the legality of the administration's decision to end the Obama-era immigration policy known as Deferred Action for Childhood Arrivals, or DACA.

The inaction effectively allows the program to continue, reducing Trump's already limited leverage in a high-stakes impasse over money for his proposed border wall.

DACA allows certain young migrants who were brought to the United States illegally as children to avoid deportation and receive permits to work in the country. Approximately 800,000 young undocumented immigrants have received work permits under the 2012 program, according to the Pew Research Center.

The Trump administration announced in 2017 that it would phase out the program, but that decision was ultimately held up in court. The Supreme Court's schedule is now full for the year, making it unlikely that the justices will be able to review the matter this term, pushing off a decision until possibly 2020.

Trump projected confidence that the court would take up the matter quickly and deliver him a win. At least three times since the shutdown began last month, Trump said a quick ruling on DACA would force Democrats to strike a deal.

"It will be in the United States Supreme Court," Trump said of the DACA case during a Jan. 2 Cabinet meeting. "So if we win that case — and I say this for all to hear — we'll be easily able to make a deal on DACA and the wall as a combination. But until we win that case, they don't want to really talk about DACA."

On Saturday, Trump offered to extend DACA's legal protections for the immigrants, as well as those for people fleeing humanitarian crises in their home countries, for three years in exchange for wall money and an end to the closure.

But with DACA looking safe for the time being, Democrats now have even less incentive to accept a limited three-year extension. That hurts Trump, who hoped a strengthened conservative 5-4 majority on the court would boost his negotiating power.

Democratic leaders quickly rejected Trump's weekend proposal. House Speaker Nancy Pelosi called it "a compilation of several previously rejected initiatives, each of which is unacceptable and in total, do not represent a good faith effort to restore certainty to people's lives."

Senate Minority Leader Chuck Schumer blasted the plan as "not a compromise" and blamed Trump for taking away the protections in the first place.

Legal experts and some Democratic lawmakers noted that the proposed three-year extension of DACA protections falls short of terms discussed as part of a possible immigration deal between Trump and Democrats that crumbled last year.

Polls show Americans increasingly blame Trump for the closure, as 800,000 federal workers face a second lost paycheck Friday and the impasse disrupts government services and economic growth.

In December, the president said he would be "proud to shut down the government for border security" and "take the mantle" if funding lapsed. In tweets Tuesday, he pledged not to back down from his wall demand as Democrats flatly refuse to pass funding for the project.

Ending DACA

The current litigation before the court stems from a September 2017 memorandum from then-Acting Secretary of Homeland Security Elaine Duke that announced that the program would be ended. The administration's reasoning, according to the memo, was a legal determination made by then-Attorney General Jeff Sessions that DACA was an "unconstitutional exercise" of executive branch authority.

The rescission of DACA in 2017 prompted a flurry of lawsuits from the Regents of the University of California, a group of states led by California, as well as individual DACA recipients led by Dulce Garcia, a lawyer in San Diego who was brought to the United States illegally when she was four years old.

The cases were consolidated, and a California district court ultimately issued an injunction at the start of 2018 that put the administration's action on hold.

The Department of Justice then pressed an appeal to both the U.S. 9th Circuit Court of Appeals and, in an unusual maneuver before an appellate ruling, the Supreme Court. The high court denied the Trump administration's request but noted that it assumed the 9th Circuit would "proceed expeditiously."

The Trump administration went back to the court in November, complaining that the 9th Circuit was taking too long to issue a ruling. Three days later, on Nov. 8, a three-judge panel of the appeals court released its opinion affirming the lower court's order keeping DACA in place.

The 9th Circuit rejected the Trump administration's arguments that its actions were not subject to judicial review.

"The government may not simultaneously both assert that its actions are legally compelled, based on its interpretation of the law, and avoid review of that assertion by the judicial branch," wrote Judge Kim Wardlaw.

While the justices did not say whether they would review the 9th Circuit's decision on Tuesday, they did announce that they would take a 2nd Amendment case, the first such dispute to be heard by the high court in nearly a decade.

Trump's confidence

Trump, who has appointed two justices to the Supreme Court, has repeatedly said that he believes the high court will agree with his administration and allow him to end the policy.

In remarks to reporters earlier this month, Trump said that "if the court does what most great legal scholars think they'll do, they won't give President Obama, or President Trump, the power to do what President Obama did. And if that happens, it will be a great thing for our country."

The states of Texas, Alabama, Arizona, Arkansas, Florida, Louisiana, Nebraska, South Carolina and West Virginia as well as Mississippi Gov. Phil Bryant have filed a brief in support of the Trump administration in the case.

The Texas-led group of states successfully challenged an expanded version of DACA, as well as a related program shielding undocumented parents of documented children. The Supreme Court upheld that challenge in a 4-4 ruling in 2016. That decision, which was only nine words long — "The judgment is affirmed by an equally divided court." — did not establish any precedent.

The Supreme Court last year signed off on a separate Trump administration policy regarding immigration law, the so-called "travel ban" that limited entrance into the country by travelers from a number of Muslim-majority countries. Chief Justice John Roberts wrote for the court's 5-4 majority that the travel ban fell "squarely" within the president's executive authority.

A month after the court ruled in the case, Justice Anthony Kennedy announced his retirement from the high court. Trump replaced Kennedy with Justice Brett Kavanaugh, providing the president with what is believed to be a more reliable conservative majority.

The DACA case is Department of Homeland Security v. Regents of the University of California, No. 18-587.