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.
Here the Trump administration can shift from defense to offense. In June 2017, the Supreme Court asked the solicitor general — the executive branch’s top lawyer — to weigh in on the Arizona case. There are three possible responses. First, the solicitor general could suggest that the Court deny review, and let the Ninth Circuit’s decision — and its implicit endorsement of DACA — stand undisturbed.
Second, the solicitor general could tell the Court that the case is moot, because DACA is being wound down. Alas, sending the case back to the Ninth Circuit is a risky gambit, as they could uphold DACA on other grounds. The third option is the most promising: The solicitor general should encourage the justices to hear the case now, and settle — once and for all — whether DACA is lawful.
The Supreme Court is far more likely to rule for the Trump administration than would courts in New York or California.
Third, and most important, the Supreme Court is far more likely to rule for the Trump administration than would courts in New York or California. Recall that in 2016, the high court split 4–4 on the constitutionality of President Obama’s related 2014 executive action, which shielded from deportation the parents of citizens and lawful permanent residents. As even the Obama administration’s Office of Legal Counsel acknowledged in a cryptic footnote, DACA, which does not require applicants to have any relation to a U.S. citizen, is on shakier legal grounds.
Sooner or later, the justices will have to weigh in on the constitutionality of this executive action. The Trump administration should ask the Court to do so now, and settle this core question about the separation of powers.
— Josh Blackman is a constitutional-law professor at the South Texas College of Law in Houston, an adjunct scholar at the Cato Institute, and the author of Unraveled: Obamacare, Religious Liberty, and Executive Power.