California’s Attorney General, Xavier Becerra, filed a brief with the U.S. Supreme Court Friday, countering the Trump administration’s request to reconsider a liberal judge’s ruling that keeps the rescinded Deferred Action for Childhood Arrivals (DACA) program in place.
Barack Obama-appointed Federal District Judge William Alsup issued an order keeping DACA in force nationwide last month, despite the executive branch’s decision to discontinue President Barack Obama’s constitutionally questionable program.
Solicitor General Noel Francisco quickly made good on Attorney General Jeff Sessions’s pledge to take the unusual step of bypassing the notoriously left-leaning U.S. Court of Appeals for the Ninth Circuit and asking the Supreme Court to step in to overturn Alsup’s order. On January 23, the high court granted Francisco’s petition.
On Friday, Becerra answered Francisco’s petition, as the Supreme Court gave him leave to do, on behalf of his own “sanctuary state” of California, as well as his fellow Democratic Attorneys General in Maine, Maryland, Minnesota, and others. The response argues that the case, which is forcing the Department of Homeland Security (DHS) to keep DACA up and running, is not “of such imperative public importance as to justify deviation from normal appellate practice” and therefore ineligible to go directly to the Supreme Court under Supreme Court Rule 11.
The brief argues not only that DACA is constitutional, but that there is “no such emergency” justifying the direct petition to the Supreme Court because DACA recipients have already been in the country for years. Most surprisingly, the brief refers to illegal aliens shielded from deportation by DACA as “Americans,” arguing:
Without [Judge Alsup’s] injunction, thousands of DACA recipients would lose their work authorization and deferred action status in March 2018 and thousands more the next month, and each succeeding month, until nearly three-quarters of a million young Americans would be shunted back into the shadows of our society. As the district court found, this would profoundly damage the individual plaintiffs, the States and the other entity plaintiffs, our communities, our educational institutions, our businesses, and the entire Nation. (citations omitted)
Becerra, California’s top law enforcement official, is a fervent advocate for illegal aliens and the use of “sanctuary city” policies to frustrate federal immigration enforcement. He has gone as far as to threaten California employers who cooperate with U.S. Immigration and Customs Enforcement (ICE) with prison time. In President Trump’s first year in office, California has sued the Trump administration more than two dozen times. Trump, meanwhile, has repeatedly acted swiftly to disperse federal emergency aid to California.
The original lead plaintiff suing to reverse President Trump’s decision to cancel DACA is Janet Napolitano, Obama’s DHS secretary, who initially oversaw DACA’s rollout. She is now President of the Univsersity of California and is suing in that capacity, alleging the decision to end DACA violates the Administrative Procedure Act. Her lawyers also filed a brief aiming to stop the Supreme Court from immediately taking the case Friday.
The Napolitano brief also implies illegal aliens are “Americans.” The respondents argue that the main posited government justification for ending DACA – that the program is likely illegal and the government ought to stop breaking the law – is a mere pretext for what they see as a constitutionally impermissible goal: benefiting what they call “non-immigrant Americans” to the detriment of illegal aliens. The lawyers, from the prestigious Washington, DC, firm of Covington & Burling, write that their clients
claim that Petitioners’ proffered reason for rescinding DACA — that it is illegal or posed intolerable “litigation risk” — is pretextual, and that the actual reasons were . . . unsupported assertions that DACA recipients are taking jobs away from non-immigrant Americans and present risks of crime and even terrorism.
The next Supreme Court conference day is Friday, February 16. A decision on whether to consider Judge Alsup’s order preserving DACA may come shortly thereafter.
The case before the Supreme Court is U.S. Dept. of Homeland Security v. Regents of the Univ. of Calif., No. 17-1003, on appeal from the U.S. District Court for the Northern District of California.