US Supreme Court Rejects Bid to Hear DACA Challenge


This morning, Monday, February 26th, 2018, the US Supreme Court denied the Department of Homeland Security’s petition for certiorari (a petition asking for the Supreme Court to review a decision made at a lower court) to hear their arguments for why ending the Deferred Action for Childhood Arrivals (“DACA”) program is lawful and within the power of the Department of Homeland Security. In the case Department of Homeland Security v Regents of the University of California, the Supreme Court considered two issues regarding the DACA program. One, whether the decision to “wind down the DACA program” is judicially reviewable (thus subject to Federal Court of Appeal challenges, see previous posts here and here), and two, whether this decision to do so is lawful.

What this means is that the Supreme Court will not appeal the lower court’s judgments. Because the Supreme Court made no oral arguments there is no clear reason why they did this. The most likely reason is that the Department of Justice submitted their application to appeal while the case was still being decided by a lower court. As such, the Supreme Court would be making a determination of law, rather than settling an existing dispute. Although this is something the Supreme Court is capable of doing, it would have been highly unusual.

Although certainly a significant victory for supporters of the DACA program, as discussed in my earlier posts, there are still three major problems.

One, the legality of ending the DACA program is still up for debate. Although some federal courts have temporarily blocked ending the program, there is no permanent legal mechanism to protect it. As such, the federal government can still find a way to end it, their current strategies for doing so are just not permitted.

Two, funding. Congress still has to find a way to fund the program. Even though it is still open, if there is no funding for it, then “Dreamers” living in America are in a precarious and vulnerable predicament. Rejecting, or at least stalling any budget plan for DACA could be one strategy Republicans use in order to circumvent these court orders requiring the government to keep the program open.

Three, enforcement. Although DACA will not be revoked for those currently benefiting from the program, the Trump administration has successfully denied any future applicants from qualifying. As such, children brought to the US illegally are subject to enforcement by both the Department of Homeland Security and Immigration and Customs Enforcement. This will likely lead to children of illegal immigrants being denied constitutional protections and being abused by the system.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC

About the Author

Nathan Prendergast
Nathan is a second year in the JD program at the University of Windsor Faculty of Law.