With Brett Kavanaugh on the bench, the Justice Department signaled on Wednesday that it wants to expedite lawsuits concerning Trump administration positions through the lower courts in order to get them before the Supreme Court’s newly formed five-justice conservative majority.
The latest example came in a letter from to the 9th US Circuit Court of Appeals warning if there wasn’t a decision soon on the administration’s planned phase out of the Deferred Action for Childhood Arrivals program — the Obama-era program that protects young undocumented immigrants who came to the United States as children from deportation — the Justice Department would go directly to the Supreme Court.
A district court judge temporarily blocked the administration from unwinding the program pending the resolution of the litigation. The 9th Circuit heard arguments May but has yet to issue an opinion.
Although the Trump administration announced plans to phase out the program last September, judges in different districts across the country have temporarily blocked the government from doing so and ordered that renewals under the program should continue while the cases play out in court.
At issue is not the legality of the program but how the government chose to wind it down. Supporters of the roughly 700,000 “Dreamers” who could be impacted say the administration’s actions were arbitrary and in violation of federal law.
“This Court heard oral argument in the case on May 15,” wrote DOJ attorney Mark Stern on Wednesday. “We respectfully write to inform the Court that, in order to ensure review by the Supreme Court during its current Term, we intend to again petition the Supreme Court for writ of certiorari before judgment to review the district court’s preliminary injunction order.”
Stern said the goal is for the Supreme Court to consider the issue before the current term ends in June 2019 and cited the injunction that has blocked the phase out across the entire nation.
“The district court’s injunction has now been in place for more than nine months, and, unless either this Court or the Supreme Court promptly intervenes, it could remain in force for at least another year, given the Supreme Court’s argument calendar,” he wrote.
Under normal circumstances, the Supreme Court does not like to take up issues that have not been fully reviewed by the lower courts, but some justices on the bench might be sympathetic to the fact that the lower court issued an injunction blocking the program nationwide.
In a speech on Monday before the Heritage Foundation, Attorney General Jeff Sessions was critical of so called nationwide injunctions.
“In the first 175 years of this Republic, not a single judge issued one of these orders,” Sessions said. “But they have been growing in frequency and, since President Trump took office less than two years ago, 27 district courts have issued such an order,” he said.