By Kevin Daley
President Donald Trump’s Mar. 5 deadline for reaching a legislative solution to the Deferred Action for Childhood Arrivals (DACA) program is now a non-factor in the ongoing debate over the future of some 680,000 illegal aliens who arrived in the U.S. as children.
The legal morass surrounding Trump’s decision to end DACA, currently pending before the 9th and 2nd U.S. Circuit Courts of Appeal, will not be resolved quickly, hindering his authority for the foreseeable future.
In Sept. 2017, Trump announced he would terminate DACA on Mar. 5, unless Congress saved the policy by legislation. The deadline had political, not practical, consequences. Under the terms of the program, recipients applied for reauthorization every two years. An immigrant with DACA authorization is exempt from deportation (subject to certain exceptions) and eligible for a work permit. The administration’s announcement meant it would cease issuing reauthorizations after the 5th — but that doesn’t mean every recipient’s protected legal status would instantly expire. Rather, it means their current authorization cannot be renewed once it lapses.
In Jan. 2018, Judge William Alsup of the U.S. District Court for the Northern District of California forbade the government from terminating DACA. Alsup said the administration’s justification for rescinding the program proceeded from a flawed legal premise, rendering the decision “arbitrary, capricious, an abuse of discretion, [and] otherwise not in accordance with law.”
A federal judge in New York City imposed a second injunction on different grounds. That case is currently before the 2nd Circuit.
The decisions require the Homeland Security Department to continue administering the program for the time being. Though the government need not accept new DACA enrollees, it must process all applications for reauthorization, meaning some current DACA recipients will be able to remain in the U.S. until at least 2o20.
In a rare procedural move, the Justice Department asked the U.S. Supreme Court to overturn Alsup’s injunction. Under standard process, an appeal would be lodged at the 9th Circuit, but DOJ told the justices the matter required urgent and definitive resolution, since the order requires the government to sanction the ongoing violation of immigration laws by hundreds of thousands of foreign nationals.
The justices denied that request Monday, effectively mooting the Trump-imposed Mar. 5 deadline. The case will now revert to normal procedure, so the government will appeal to the 9th Circuit. Though the 9th Circuit has agreed to decide the case quickly, it is still likely to take at least a month to issue a decision, well past Mar. 5. In the mean time, Alsup’s injunction will remain in force.
If the 9th Circuit upholds Alsup’s decision, the administration can return to the Supreme Court. By the time their petition reaches the justices, however, it will be too late for the Court to decide the case this term. The justices hear and decide cases between October and June — a final schedule is generally set within a few weeks of the new year, making January the latest possible point at which to add a case for the current term.
Assuming the justices do take the case, they will need several months to hear arguments and issue a decision.
President Trump may well prevail in the DACA litigation, but it could take a year, if not longer, to vindicate his authority to terminate the program. As such, his Mar. 5 deadline is now irrelevant.
Congress, for its part, works best when faced with a deadline. With time no longer a factor, and the country fixated on gun violence, urgency is not the order of the day.