Will Kavanaugh Finally Cast the Vote That Ends DACA?

The Justice Department has warned that if the Ninth Circuit Court of Appeals doesn’t rule on the program, it’ll take it up to the new conservative Supreme Court majority.

Supporters of the Deferred Action for Childhood Arrivals Act (DACA) and others demonstrate outside the U.S. District Court 9th Circuit in Pasadena, California, May 15, 2018 (Reed Saxon / AP)

The Trump administration wants a decision on DACA from the Ninth Circuit Court of Appeals by the end of the month—or else it will go to the Supreme Court, with Brett Kavanaugh in a new conservative majority.

On Wednesday, the Justice Department sent a letter to the Ninth Circuit urging that it rule on Deferred Action for Childhood Arrivals, an Obama-era program that shields from deportation undocumented immigrants who were brought to the United States illegally as children. The department warned that if the court doesn’t come to a decision by October 31, it would take the case to the Supreme Court.

The high court previously took up a case on the legality of the Deferred Action for Parents of Americans program (known as DAPA), which, like DACA, protected some undocumented immigrants from deportation. In 2016, the Court, then made up of only eight justices following Justice Antonin Scalia’s death, deadlocked. It’s not clear how a DACA case would be decided by the Court, though Kavanaugh’s arguments in two immigration cases suggest that he’d side with conservatives on the issue.

Leon Fresco, who previously served as the head of the Office of Immigration Litigation in Barack Obama’s Justice Department, argued a case on student visas before Kavanaugh during his time at the U.S. Court of Appeals for the District of Columbia Circuit. Fresco’s experience leads him to believe that Kavanaugh would not rule in favor of DACA.

“I think the best conclusion will be that Kavanaugh will say that Congress didn’t authorize anything in the statute,” Fresco told me. “To the extent that it was a prosecutorial-discretion program, it could similarly be a prosecutorial-discretion program that can be ended without having any formal reasons.”

The National Immigration Law Center expressed its skepticism of Kavanaugh’s immigration track record following his nomination. “Kavanaugh’s legal writings and recent dissents speak for themselves: he thinks immigrant communities should be Constitution-free zones, and that reproductive justice should be curtailed,” Marielena Hincapié, the executive director of the National Immigration Law Center, said in a statement.

John Miano, an attorney with the Immigration Reform Law Institute who has also appeared before Kavanaugh, however, argues that the justice could go either way on DACA. “He’s very good at finding inconsistencies in the law and understanding the subtler points of things,” Miano said. “That makes him hard to predict.”

The Trump administration has been waiting months to finally end the DACA program, which has been in limbo for more than a year.

Attorney General Jeff Sessions announced the phaseout of DACA in September 2017, but a series of rulings by federal judges has kept the program alive. Three federal judges have ruled that the justification to end the program and the way the administration tried to terminate it were flawed. Most recently, a federal district judge in Brownsville, Texas—who was responsible for blocking the implementation of similar protections for undocumented parents in 2015—declined to issue a preliminary injunction, but indicated that DACA was likely illegal.

In February, the Supreme Court declined  to hear the administration’s appeal, given that an appeals court hadn’t ruled yet. That’s still the case today—the Ninth Circuit heard arguments in May but hasn’t issued an opinion. Appeals are also pending in the Second and Fourth Circuits. But the Justice Department may be more emboldened to request that the Court intervene now that Kavanaugh’s on the bench.

“This Court heard oral argument in the case on May 15,” Wednesday’s letter, written by the DOJ attorney Mark B. Stern, reads, referring to the Ninth Circuit. “We respectfully write to inform the Court that, in order to ensure review by the Supreme Court during its current Term, we intend to again petition the Supreme Court for writ of certiorari before judgment to review the district court's preliminary injunction order and related orders in the event that this Court does not issue its judgment by Wednesday, October 31.”

David Leopold, an immigration attorney in Cleveland, called it an “extraordinary request.” “They have a high threshold to show urgency,” he added. The Justice Department, for its part, argues that the Ninth Circuit has taken longer than was originally anticipated and that it ideally wants the Supreme Court to consider the issue before the current term ends in June 2019.

It’s not clear how the Ninth Circuit will react to the letter—whether it’ll indeed rush to come to a decision or continue business as usual. (The median time between filing a notice of appeal to a disposition in the Ninth Circuit is about a year, according to federal data.) But by and large, experts believe the case will eventually go to the Supreme Court. The question then will be: How will Kavanaugh rule?