If Donald Trump hopes to use the courts to force Democrats to deal for DACA, he’s not getting much in terms of pricing signals from the Supreme Court. The justices refused to take an opportunity to intercede on the question of the program’s constitutionality yet again, this time in a case brought by the ACLU against Arizona:
The U.S. Supreme Court on Monday required Arizona to continue to provide driver’s licenses to the so-called Dreamers immigrants and refused to hear the state’s challenge to an Obama-era program that protects hundreds of thousands of young adults brought into the country illegally as children.
The case centered on the Deferred Action for Childhood Arrivals (DACA) program created in 2012 under Democratic former President Barack Obama that Republican President Donald Trump already has sought to rescind. Those who signed up for the program are shielded from deportation and given work permits.
The high court refused to hear Republican-governed Arizona’s appeal of a lower court ruling that barred the state from denying driver’s licenses to people protected under DACA.
Unlike some of the other challenges, this case had gone through the full district and appellate process. The 9th Circuit ruled last year that Arizona had to continue to make drivers licenses available to DACA-protected immigrants, deciding that the federal government had the plenary authority to decide which immigrants could remain in the country and have access to services open to other immigrants. It was the second time that the 9th Circuit had ruled in this fashion, they noted:
We previously held that DACA recipients and other categories of noncitizens who may rely on EADs are similarly situated with regard to their right to obtain drivers’ licenses in Arizona. See ADAC II, 757 F.3d at 1064. The material facts and controlling authority remain the same from the preliminary injunction stage. Thus, we again hold that in all relevant respects DACA recipients are similarly situated to noncitizens eligible for drivers’ licenses under Arizona’s policy. Nonetheless, for clarity and completeness, we address once more Defendants’ arguments.
Defendants assert that DACA recipients are not similarly situated to other noncitizens eligible for drivers’ licenses under Arizona’s policy because DACA recipients neither received nor applied for relief provided by the INA, or any other relief authorized by federal statute. Particularly relevant here, Defendants note that eligible noncitizens under the categories of (c)(9) and (c)(10) are tied to relief expressly found in the INA: adjustment of status (INA § 245; 8 U.S.C. § 1255; 8 C.F.R. § 274a.12(c)(9)) and cancellation of removal (INA § 240A; 8 U.S.C. § 1229b; 8 C.F.R. § 274a.12(c)(10)), respectively. In contrast, Defendants contend that DACA recipients’ presence in the United States does not have a connection to federal law but rather reflects the Executive’s discretionary decision not to enforce the INA.
That is the heart of the argument on constitutionality. Arizona — which was the only state to attempt to block access to drivers licenses — argued that the Equal Protection Clause does not apply because the government was merely choosing not to enforce a statute that does separate legal and illegal immigrants. States had a right to rely on statute, Arizona argued. The panel on the 9th Circuit disagreed:
The federal government, not the states, holds exclusive authority concerning direct matters of immigration law. … [T]he INA explicitly authorizes the Secretary of Homeland Security to administer and enforce all laws relating to immigration and naturalization. INA § 103(a)(1); 8 U.S.C. § 1103(a)(1). As part of this authority, it is well settled that the Secretary can exercise deferred action, a form of prosecutorial discretion whereby the Department of Homeland Security declines to pursue the removal of a person unlawfully present in the United States.
The INA expressly provides for deferred action as a form of relief that can be granted at the Executive’s discretion. For example, INA § 237(d)(2); 8 U.S.C. § 1227(d)(2), allows a noncitizen who has been denied an administrative stay of removal to apply for deferred action. Certain individuals are also “eligible for deferred action” under the INA if they qualify under a set of factors.
Today’s action by the Supreme Court means that four justices could not be found to disagree with that reading of the law on DACA. This is not merely a situation of ripeness, as with other opportunities that the Supreme Court declined to take in this session. This issue has been well adjudicated in the lower courts, having gone to the 9th Circuit twice in the past couple of years.
This raises questions about whether the Supreme Court will ever bother to take a case on DACA, at least in the near term. The main issue still left untouched by the Supreme Court is whether the current administration can unwind DACA on its own. However, that may not get to the Supreme Court either. Both of the district courts that have ordered the program to continue — only for already registered participants — have acknowledged that the Trump administration has that authority, but must use the normal rule-making process to undo DACA. However, the length and complexity of the rule-making process will create many opportunities for Trump’s political foes to go on offense before the program could be ended. That’s why Trump hoped for a court ruling to provide an end run to a potential political nightmare.
The rule-making process can start at any time, which would theoretically pass muster with the courts even if Congress and the White House stall out on a deal to create a statutory version. If a court blocked that process, perhaps then the Supreme Court might get interested in enforcing the parameters of executive authority. For now, though, they do not appear interested in discussing whether DACA itself is constitutional, which means that we’re not likely to see a court-related deadline. Trump will have to provide that on his own.