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The Trump administration can bypass lower courts by asking the Supreme Court to hear an Arizona case.
Almost immediately after President Trump announced that he would wind down the policy known as Deferred Action for Childhood Arrivals — which shields from deportation nearly a million “Dreamers,” aliens brought to the U.S. as children — lawsuits were filed across the country.
These courts are soon expected to issue nationwide injunctions against the president, which will trigger the now-familiar rat race: The government will be forced to seek emergency stays from the Courts of Appeals (which will be denied), followed by a frantic appeal to the Supreme Court. There is a smarter approach: The government should urge the Supreme Court to hear a related case from Arizona this term. Doing so would settle this important constitutional question now and shortcut the inevitable defeats in the lower courts.
In 2012, Arizona determined that the state would not issue driver’s licenses to DACA recipients, because they were protected only by exercises of prosecutorial discretion. Last year, the Ninth Circuit Court of Appeals ruled that Arizona could not deny licenses to the Dreamers because that state practice would conflict with federal law. Remarkably, however, the court did not reach the essential question of whether DACA itself was legal. As Judge Alex Kozinski noted in dissent, “the lawfulness of the President’s policies is an issue that the panel bends over backward not to reach.” If DACA is illegal, then Arizona’s policy can continue. Moreover, if DACA is illegal, then President Trump’s decision to wind down the program is justified and cannot be stopped by the courts.Read the rest from Josh Blackman HERE.
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