The Supreme Court announced on Monday that it will not hear — at least for the time being — a case challenging the legality of Donald Trump’s decision to wind down the Deferred Action for Childhood Arrivals (“DACA”) program.

DACA is an Obama era initiative allowing hundreds of thousands of undocumented immigrants who came to the United States as children to work and to remain in the country. The case in question is United States Department of Homeland Security v. Regents of the University of California.

The Trump administration asked the Supreme Court to bypass the court of appeals and hear an appeal directly from a trial court decision reinstating DACA. Such requests to circumvent the intermediate appeals court — known as a “petition for writ of certiorari before judgment” — are almost never granted, and Monday’s order is no exception.

Nevertheless, it is also very uncommon for the Justice Department to make such a request of the Court. Monday’s order is an indication that there are limits to the Court’s willingness to bend its rules for the current administration.


In the long run, however, this legal challenge to DACA is unlikely to end well for the immigrants who benefit from the program.

Last month, a federal judge in California ordered much of the DACA program reinstated. Though Judge William Alsup conceded that “a new administration is entitled to replace old policies with new policies so long as they comply with the law,” he explained that when a federal agency alters existing policy, the “agency’s action must be upheld, if at all, on the basis articulated by the agency itself.”

The Trump administration claims it wants to end DACA because it believes that the DACA program is illegal, Judge Alsup disagreed — he thinks, correctly, that DACA is legal — and that disagreement formed the basis of his decision.

The case tees up the underlying question of whether a president who supports DACA is allowed to create such a program or not — and immigrants are likely to receive very bad news now that this question is before the Supreme Court. In 2016, when the Court had only eight members, the justices split 4-4 on the legality of a similar program created by the Obama administration. With the ninth seat now occupied by Neil Gorsuch, a conservative hardliner, there are now likely five votes to hold that DACA is illegal. Such a decision will tie the hands of future presidents.


A legal effort to preserve DACA could ultimately have the unintended consequence of preventing future presidents from undoing one of Trump’s anti-immigrant policies. Though the Court will not hear the case out of turn, it is likely to hear it after the case makes its way through the court of appeal, especially if the appeals court agrees with Judge Alsup’s decision.