The Department of Justice filed a notice of appeal in the U.S. Court of Appeals for the Ninth Circuit Tuesday, starting the process of challenging that court’s controversial ruling that ending the Deferred Action for Childhood Arrivals (DACA) program was unconstitutional.
DOJ also made it clear they will petition to the Supreme Court to resolve the matter.
The Department of Homeland Security (DHS) is again processing applications under President Barack Obama’s likely illegal executive amnesty for illegal aliens who entered the United States as children after liberal Judge William Alsup of the San Francisco-based U.S. District Court for Northern California issued an injunction blocking the Trump administration’s decision to rescind DACA.
In a release accompanying the notice of appeal, Attorney General Jeff Sessions said:
It defies both law and common sense for DACA—an entirely discretionary non-enforcement policy that was implemented unilaterally by the last administration after Congress rejected similar legislative proposals and courts invalidated the similar DAPA policy—to somehow be mandated nationwide by a single district court in San Francisco.
As Session’s notes, the nearly identical Deferred Action for Parents of Americans (DAPA) policy was already itself found illegal by the U.S. Court of Appeals for Fifth Circuit, casting serious doubt if DACA was constitutional in the first place. Homeland Security Secretary Kirstjen Nielsen explicitly endorsed the view it is not Monday.
The present case, Regents of the Univ. of Calif. v. U.S. Dept. of Homeland Security, has already seen its way to the Supreme Court once after Alsup issued sweeping discovery orders looking into the administration’s decision to reverse the policy and the Ninth Circuit upheld those orders. A unanimous Supreme Court reversed, blocking the orders.
Losing that round, however, did not discourage the Bill Clinton-appointed Alsup, who still used his power to temporarily force DHS to follow Obama’s DACA policy based on a lawsuit led by former DHS Secretary Janet Napolitano, the woman who initially implemented DACA, alleging the move to end it did not comport with the Administrative Procedure Act (APA), the federal law that governs most agency decision-making.
It is clear that Acting Secretary Duke acted within her discretion to rescind this policy with an orderly wind down. This was done both to give Congress an opportunity to act on this issue and in light of ongoing litigation in which the injunction against DAPA had already been affirmed by the Supreme Court. We are now taking the rare step of requesting direct review on the merits of this injunction by the Supreme Court so that this issue may be resolved quickly and fairly for all the parties involved.
A Department of Justice official made it clear to Breitbart News that the decision to pursue an appeal in the notoriously liberal Ninth Circuit, as is the normal appellate procedure here, stems from the Supreme Court rules discouraging direct petitions to the Supreme Court without “a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice[.]”
Nevertheless, the DOJ will pursue that extraordinary measure here. “The Department also intends later this week to take the rare step of filing a petition for a writ of certiorari before judgment, seeking direct review in the Supreme Court,” the press release reads.
The case is Regents of the Univ. of Calif. v. U.S. Dept. of Homeland Security, 3:17-cv-05211.