DOJ seeks to bypass Ninth Circuit in DACA case

The Department of Justice said today that it will ask the Supreme Court to review immediately the ruling of a California federal judge (William Alsup) ordering the government to restart the DACA program. Normally, the appeal from that ruling would be heard by the ultra-liberal U.S. Court of Appeals for the Ninth Circuit. However, the DOJ seeks to proceed directly to the Supreme Court.

As long-time Supreme Court reporter Lyle Denniston explains, the Supreme Court has the discretion to hear a case even before it has gone through all of the lower court levels. However, it rarely exercises that discretion. The procedure is reserved for major national controversies — which the DACA dispute certainly is — especially when time is an urgent factor.

Discussing his decision to seek immediate Supreme Court review, Attorney General Sessions said “it defies both law and common sense” for the beliefs of a single district court “to somehow be mandated nationwide.” That’s the trend these days, though, with litigants “shopping” for sympathetic judges and then obtaining orders on major policy issues that apply nationwide. This is what leftist activists did in the travel ban cases. Conservatives did the same thing to thwart President Obama’s DAPA program.

Immediate Supreme Court review in such cases is a good response. However, the Supreme Court may well be reluctant to provide it except in extraordinary cases.

Will the Supreme Court agree to hear the DOJ’s appeal without waiting for the Ninth Circuit to go through the motions of upholding the decision of the leftist district court judge? It’s hard to say.

However, Denniston notes that the Court has already shown an active interest in prompt resolution of this controversy. It ordered the California district court judge to rule promptly on the DOJ’s requests to dismiss the five lawsuits pursued by defenders of DACA. (The judge did dismiss some of the claims, but he kept a number of significant issues alive, and ruled that at least some of them likely will succeed after the case is fully tried).

Denniston also says the Supreme Court is virtually certain to end up deciding this controversy. Absent congressional legislation that provides DACA-like protection, he is right. Ninth Circuit review is a waste of time.

Thus the Court might conclude that it’s better to resolve this matter sooner than later. If so, the matter could be set for a hearing in early March, just after DACA is set to expire.


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