In Refusing to Take Up DACA, SCOTUS Removes Democrats' Incentive to Deal With Trump

By Susan Jones | January 22, 2019 | 11:33am EST
Pro-immigration activists gather in front of the U.S. Supreme Court on April 18, 2016. (Photo by Alex Wong/Getty Images)

( - The U.S. Supreme Court on Tuesday refused a Justice Department request to directly review President Trump's attempt to end Deferred Action for Childhood Arrivals (DACA).

The Obama-era program granted work permits and deferred deportation for hundreds of thousands of people who were brought to this country illegally as children.

The Supreme Court's refusal to take up the case right now means DACA protections will continue for an undetermined length of time, pending the outcome of legal challenges, including possible Supreme Court review at a later date.

Earlier this month, President Trump said if the Supreme Court allowed him to end DACA -- as he believed the court would do -- it would be much easier for him to make a DACA-Border wall deal with Democats. "But until we win that case," he said on Jan. 2, "they don't really want to talk about DACA."

As it turns out, Democrats still don't want to talk about DACA.

On September 5, 2017, President Trump issued an executive order rescinding the Obama administration memorandum that created DACA.

Then-Attorney General Jeff Sessions noted that DACA was not authorized by Congress and was therefore an unconstitutional exercise of discretion by the executive branch.

Immigration advocates immediately sued the Trump administration. Three federal courts and eventually the 9th Circuit Court of Appeals issued nationwide injunctions, which allowed DACA enrollees to keep renewing their temporary legal status.

In response, the Trump Justice Department took the "rare step" of asking the Supreme Court to rule on the case before it worked its way through the relevant federal appeals courts.

Today, the Supreme Court announced it will not grant certiorari (review) of the three DACA cases -- Department of Homeland Security v. Regents of the University of California, 18-587; Trump v. NAACP, 18-588; and Nielsen v. Vidal, 18-589.

Those cases were relisted, meaning the justices may consider them at their next conference, but it is unlikely they will be taken up this term.

(According to SCOTUS blog, "a relist can mean several things, including that one or more Justices wants to take a closer look at the case; that one or more Justices is trying to pick up enough votes to grant review (four are needed); that the Justices are writing a summary reversal (that is, a decision that the lower court opinion was so wrong that the Court can decide the case on the merits without briefing or oral argument); or that one or more Justices are writing a dissent from the decision to deny review.")

The Supreme Court's refusal to directly review DACA is sure to frustrate President Trump.

As previously reported, Trump -- at a Jan. 2, 2019 Cabinet meeting -- said Democrats have no incentive to make a deal on DACA, given court rulings blocking Trump from ending the program:

“We were close to having a DACA deal, and then we had a judge from the 9th Circuit -- amazing ruling -- and he said DACA was okay even though when President Obama signed it, he essentially said, ‘Well, probably can’t sign this. Probably not legal, but I’m gonna sign it anyway.’ And so everybody thought that it was going to be easily overturned by the judge, and the judge amazingly ruled in favor of that signing, even though President Obama didn’t think it was going to hold up as he signed it. He said it. Go back and check,” Trump said.

Trump continued:

And then you had it upheld in the 9th Circuit on appeal, and now it’s going to the Supreme Court of the United States. We had a deal pretty close to being done, and a lot of people said I backed away from that deal. I didn’t back away. The minute the judge overruled the case and they allowed DACA, they didn’t talk to us about -- and I don’t blame them -- they didn’t answer the calls. They said, ‘I’m not going to approve that. We won the case. Why should we make a deal with DACA?’” Trump recalled.

I think it’s going to be overturned in the United States Supreme Court, and I think it’s going to be overwhelmingly overturned. I mean, nobody thinks that should have happened. We think it was a fluke, and it was a disgraceful situation that a judge ruled the way the judge ruled, but we think it’s going to be overturned. It’s now going - as you probably heard two weeks ago - it’s now going, it will be in the United States Supreme Court,” the president said.

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, although they should because there are those that don’t want to allow DACA.

President Trump's current offer to Democrats is a three-year extention of DACA and a similar extension for foreigners with Temporary Protected Status (TPS) in exchange for $5.7 billion for a border wall and other border security enhancements.

Democrats have refused to negotiate with Trump until he agrees to end the partial government shutdown, without which, Trump has little leverage to force funding for his wall.

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