The Supreme Court is not likely to review during its current term the program that shields young undocumented immigrants brought to the United States as children, leaving in place the Obama-era initiative that the Trump administration has tried to end.
The justices on Tuesday took no action on the administration’s request that it review the Deferred Action for Childhood Arrivals program, which has protected nearly 700,000 people brought to this country as children, commonly known as “dreamers.”
If the court sticks to its normal procedures, that would mean that even if it accepts the case as a later date, it would not be argued until the new term starting in October, with a decision likely in 2020.
To date, lower federal district and circuit courts have uniformly prevented President Trump from pulling the rug out from under dreamers.
Constitutional scholar Laurence Tribe tells me, “The absence of a circuit split would not have prevented the Court from agreeing to hear a case of this enormous national significance at the earliest possible opportunity unless it was reluctant to wade into so political a thicket at a time when doing so would clearly change the president’s bargaining leverage on the shutdown.”
Trump wants to “give” temporary relief to DACA beneficiaries (actually only a portion of them) in exchange for his wall, but the Supreme Court and lower courts have already done the former. “Simply letting the case remain on the court’s docket until the fall, when I fully expect a decision to review the DACA matter on its merits unless it becomes moot by then, which seems most unlikely, was the natural thing to do for a court not hungry to plunge into the maelstrom of political controversy at a time when it could easily preserve the status quo simply by doing nothing,” Tribe explains. “I take this not as an especially good sign of things to come but as a confirmation that the chief justice and most of his colleagues don’t want to flex the muscles of their relatively vulnerable branch when there’s no clear need to do so.”
That classic case of judicial restraint nevertheless should hearten Trump’s legal adversaries. By and large, the lower federal courts have been receptive to claims brought against Trump’s executive overreach, be it in the case of the Muslim ban, or punishment of so-called sanctuary cities, or new rules imposing limits on asylum petitioners. If the lower courts do their job in checking the excesses of the executive branch, the highest court can keep its powder dry for cases in which the lower courts are split or issues that otherwise need more immediate resolution.
One might see in the court’s disinclination to march into the shutdown fight (although not wading in has the effect of bolstering Trump’s adversaries) real recognition on Chief Justice John G. Roberts Jr.'s part that the court has serious credibility issues. He and Associate Justices Sonia Sotomayor and Elena Kagan recently have spoken publicly about the need for the court to avoid the impression it is simply one more partisan player in the political scrum. Ducking this confrontation helps lower the court’s profile, if only temporarily.
Whatever the motivation, the court’s action underscores how fraudulent is Trump’s offer. In exchange for “giving” dreamers (only some of them) what the courts already have given them, he proposes massive restrictions on asylum seekers and full funding for his preposterous wall. That’s a move backward, not forward, in negotiations. And unless he gets all that, he’s not going to allow 800,000 federal workers to get paid. What a deal, huh?
Perhaps it is time for federal workers and organized labor (where are they when hundreds of thousands of Americans are working with no pay?) to hit the streets. Maybe announcing that Transportation Security Administration agents won’t come to work on Super Bowl weekend would do the trick.