Counting on Justice Kavanaugh’s presumed loyalty, the Trump admin hopes to push DACA in front of the Supreme Court as soon as possible


The past couple months have been dominated by the Trump administration and Senate Republicans’ efforts to get Judge Brett Kavanaugh onto the Supreme Court. With that victory, the U.S. Department of Justice is wasting no time in seeking to get cases that support the president’s agenda in front of the conservative-dominated court. As of October 17, the DOJ has indicated that one of its top priorities is getting the Supreme Court to decide, once and for all, on the Deferred Action for Childhood Arrivals (DACA) program.

DACA, the Obama-era program that allows certain young undocumented immigrants who meet strict guidelines to obtain work permits and be designated non-priority cases for removal, has been the subject of multiple lawsuits: some initiated to challenge the Trump administration’s abrupt, potentially unlawful termination of DACA in September of 2017, while a recent case in Texas was brought on by several conservative states hoping to end DACA through the court system. As of now, the government does not need to process Initial (new) DACA applications or sanction Advanced Parole, but DACA Renewals must be processed as usual.

Attorney General Jeff Sessions, head of the DOJ and a longtime anti-immigration hardliner, is particularly frustrated with California’s 9th Circuit Court, which issued the preliminary injunction in January of 2018 that barred the federal government from terminating the DACA program and required USCIS to process Renewals. The injunction is effective nationwide, and was ordered to last until the court reaches a decision in the lawsuit. The court heard arguments in May, and is yet to issue a decision.

The DOJ wrote a letter to the 9th Circuit threatening to beseech the Supreme Court to force the case to come before them if the 9th Circuit does not issue its decision soon. The DOJ offered the deadline October 31, 2018. The Supreme Court rejected a similar plea made in January which hoped to bypass the 9th Circuit all together, but with Justice Kavanaugh now on the court, Trump’s DOJ hopes for a more sympathetic result.

What does this mean for current DACA holders? DACA Renewals are still being processed and approved, and Employment Authorization Documents remain valid. And it remains to be seen if the Supreme Court will accept the DOJ’s request or reject it. Unfortunately, it appears that Justice Kavanaugh may have been chose in part for his loyalty to the anti-immigration agenda, and it is possible that the Supreme Court may decide that President Trump can terminate the DACA program for all future applicants as he desires. It is for this reason that we urge in the strongest terms that any current DACA holder whose status expires before 2020 seek an attorney to submit a Renewal application as soon as possible.

For more information on the DOJ’s efforts to sway the Supreme Court, please see:

Image: By Pax Ahimsa Gethen [CC BY-SA 4.0 (], from Wikimedia Commons