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The Trump Administration, Again, Asks The Supreme Court To Hear A DACA Case

The last time the administration asked the court to consider DACA's legality, the court told the Justice Department it wanted to hear from the appeals court first.

Last updated on November 5, 2018, at 9:22 p.m. ET

Posted on November 5, 2018, at 5:31 p.m. ET

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The Trump administration is again asking the Supreme Court to resolve questions over the legality of the administration's attempt to end the Deferred Action for Childhood Arrivals program.

In a letter filed with the Supreme Court on Monday, Solicitor General Noel Francisco told the court that the Justice Department was filing the request — for the court to take up the issue before any appeals court has ruled in any of the several cases challenging the move — so that the court would be able "to consider this dispute during the current Term."

The Justice Department filed the legal request — a petition for certiorari before judgment — in cases out of California, New York, and Washington, DC, in which judges sided with challengers to the administration's decision to end DACA, issuing orders leaving parts of the program in place for the time being.

While a judge in another case, out of Texas, ruled that the DACA program is likely illegal, that judge also declined to issue an injunction halting the program immediately. That case was not included in Monday's Supreme Court filing.

Earlier this year, the Supreme Court rejected the Justice Department's request to hear the case out of California before the appeals court could weigh in.

New York Attorney General Barbara Underwood highlighted this issue — of the Justice Department seeking to bypass the appeals court — in a tweet calling the practice "a remarkable lack of respect for the judicial process."

DOJ has shown a remarkable lack of respect for the judicial process by repeatedly seeking to skip over the lower courts and, rather, go straight to the Supreme Court – including in our #2020Census case and, just today, regarding the injunction we secured to protect #DACA.

The Supreme Court itself has appeared to take note of this practice. In Friday night's order from the Supreme Court in the kids' climate change case, the court denied DOJ's request there "because adequate relief may be available in the United States Court of Appeals for the Ninth Circuit."

Attorney General Jeff Sessions issued a statement on Monday night criticizing the Obama administration for having put DACA in place "without a mandate or even an authorization from Congress or the courts." He countered that the Trump "administration can therefore end DACA at any time" — although several trial courts have disagreed as to whether the administration can end it in the way it has attempted to do so.

"Immigration law in this country — and the status of DACA recipients in particular — ultimately must be settled by our representatives in Congress," Session said in the statement. "The Department of Justice should not have been forced to make this filing today — the Ninth Circuit should have acted expeditiously, just as the Supreme Court expected them to do — but we will not hesitate to defend the Constitutional system of checks and balances vigorously and resolutely."

Advocates for immigrants, however, earlier had called the administration’s move a cynical ploy clearly rooted in swaying voters ahead of the election Tuesday.

"The administration’s repeated and unjustified efforts to subject Dreamers to deportation are nothing but cruel, and there is no justification for circumventing appellate court review," Tom Jawetz, vice president of immigration policy at the Center for American Progress Action Fund, said in a statement. "To protect this institution from being implicated in the Trump administration's electoral ploy, the Supreme Court should reject the administration’s request."

Marielena Hincapié, head of the National Immigration Law Center’s Immigrant Justice Fund, said in a statement that the move highlighted the administration’s impact on the lives of immigrants.

“It is clear that Trump will stop at nothing to get what he and extremists have wanted all along — to deport as many people in our communities, including Dreamers, as possible. And to do it as quickly as possible,” she said.

UPDATE

This report was updated with comment from Attorney General Jeff Sessions.

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