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Supreme Court again takes no action on DACA, leaving policy in effect for now

Posted at 7:29 AM, Jan 22, 2019

The Supreme Court on Tuesday once again did not act on the Trump administration's effort to end the Deferred Action for Childhood Arrivals program, leaving protections for nearly 700,000 undocumented immigrants who came to the US as children in place for at least the next several months.

The court's inaction is a loss for the Trump administration that had asked for the justices to take up the issue this fall and comes as the President has tried to exchange protections in exchange for a border wall.

"The justices' refusal to act on the government's pending appeals in the DACA litigation means, among other things, that President Trump can't use this litigation, at least for now, for leverage in negotiations over the government shutdown," said Steve Vladeck, CNN Supreme Court analyst and professor of law at the University of Texas School of Law.

"Even if the court agrees to take up these cases, the earliest it would hear them now is this fall, with no decision until early 2020," Vladeck added. "That kicks the debate over DACA back to the political branches."

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On Saturday, Trump proposed a deal that would extend temporary protections to DACA recipients and immigrants with temporary protected status in exchange for his border wall. The offer was a reversal from his previous position of leaving the program in the hands of the Supreme Court.

The issue facing the Supreme Court is not the legality of the program, but the way the Trump administration wanted to terminate it.

In September 2017, then-Attorney General Jeff Sessions announced the phase-out of DACA, arguing that it was created "without proper statutory authority." Acting Homeland Security Secretary Elaine Duke then formally rescinded the program. Under the administration's original plan, protections would have begun to expire in March 2018. But a slew of legal challenges and subsequent court rulings have kept the program alive.

Plaintiffs, including the University of California, a handful of states and DACA recipients, argued that the phase-out violated the Administrative Procedure Act, a federal law that governs how agencies can establish regulations.

Three federal judges have ruled that the justification and the manner by which the administration terminated DACA was flawed. The administration had tried to circumvent the appeals courts and involve the Supreme Court early on to no avail. But late last year, the 9th US Circuit Court of Appeals eventually upheld a ruling blocking the phase out, allowing the Supreme Court appeal.

"To be clear: we do not hold that DACA could not be rescinded as an exercise of Executive Branch discretion," wrote Appeals Court Judge Kim McLane Wardlaw. "We hold only that here, where the Executive did not make a discretionary choice to end DACA -- but rather acted based on an erroneous view of what the law required -- the rescission was arbitrary and capricious under settled law."

Appeals are still pending in the 2nd and 4th Circuits. The 2nd US Circuit Court of Appeals is set to hear oral arguments on the case Friday.

It's unlikely that DACA recipients will receive reprieve through legislation anytime soon. Democrats immediately dismissed Trump's latest proposal to provide temporary protections, pushing instead for a more permanent solution.

The back and forth over DACA has left the program's beneficiaries with no clear path forward. The program, announced in 2012, provides recipients with protection for two years, which can be renewed, and allows them to work legally in the country. To qualify, recipients must've entered the country before the age of 16 and lived in the US since 2007.

Those already enrolled in the program have been able to apply for renewal, as a result of an injunction issued last January by Judge William Alsup, though the administration is not required to take new applications.