SAN FRANCISCO (CN) – Frustrated with the slow pace of its appeal, the Trump administration on Wednesday threatened to ask the Supreme Court to review an injunction protecting some 700,000 young immigrants from deportation.
"In order to ensure review by the Supreme Court during its current term, we intend to again petition the Supreme Court for a writ of certiorari before judgment to review the district court’s preliminary injunction order," the Justice Department stated in a three-page letter to the Ninth Circuit Court of Appeals.
The Justice Department is challenging a Jan. 9 ruling by U.S. District Judge William Alsup requiring the Trump administration to renew applications of young immigrants seeking to legally reside and work in the United States under the Obama-era Deferred Action for Childhood Arrivals (DACA) program.
Unless the Ninth Circuit issues a ruling by Oct. 31, the Justice Department says it will once again take the case directly to the Supreme Court. The Justices declined to directly review the appeal in February, stating "it is assumed that the Court of Appeals will proceed expeditiously to decide this case." The Justice Department now says that assumption was wrong.
David Levine, law professor at the University of California Hastings College of the Law, said the Trump administration's filing is unlikely to pressure the appeals court to move more quickly.
"I've never heard of a litigant daring to tell the court if you don't go with my schedule, I'm going to tell the authorities," Levine said. "It seems pretty arrogant."
The Ninth Circuit gives appeals of preliminary injunctions "statutory priority," but there is no specific time in which they must be decided, according to Ninth Circuit assistant circuit executive David Madden.
Alsup's injunction is one of three court orders issued by judges in San Francisco, Los Angeles and the District of Columbia blocking the Trump administration from ending the DACA program. In August, a federal judge in Texas also denied the Lone Star state's request for an injunction to dismantle the DACA program, finding Texas waited too long to sue after DACA became the status quo.
The Supreme Court does not typically review an issue pending in different appeals courts unless there is a circuit split, or disagreement between various circuit courts, according to Bill Hing, director of the Immigration and Deportation Defense Clinic at the University of San Francisco.
Hing believes this latest move by the Trump administration is part of strategy to focus more attention on the issue in the hopes that the Supreme Court will review the case without a circuit split.
"I think the Trump administration is banking on the Supreme Court taking the case, and banking on a wish that now with a loaded court, the Trump administration assumes it's going to defer to executive authority," Hing said.
In another case challenging a Trump administration immigration policy, the Supreme Court upheld a controversial travel ban, finding the president has broad authority to impose such restrictions.
Hing agreed with Levine that the Justice Department filing is unlikely to speed up the appeal or convince the Supreme Court to take up the case prematurely.
“The court of appeals do their best," Hing said. "They're backlogged so I don't see this going very far."
To get relief more quickly, the Justice Department could have filed an emergency motion to stay the injunction pending appeal.
According to Levine, that would have been the appropriate procedure. The Justice Department's failure to file such a motion only adds to the notion that there is no "great urgency" or "harm to the public" that would justify speeding up the case, he said.
Levine also believes it's no coincidence that this filing comes just three weeks shy of an important midterm election.
“This smells of politics," Levine said.
In its filing, the Justice Department said a speedy review is critical because "the district court’s order requires the government to indefinitely tolerate – and, indeed, affirmatively sanction – an ongoing violation of federal law being committed by nearly 700,000 aliens pursuant to the DACA policy."
Alsup concluded in his January ruling that without a nationwide injunction, DACA recipients would lose their ability to work, support themselves and their families and pay taxes, which could have harmful ripple effects on the nation's economy and health care system.
More than 187,000 immigrants have renewed their DACA status since the injunction was issued on Jan. 9, according to the U.S. government's latest quarterly report.
A lawyer representing six DACA recipients, or Dreamers, who obtained the injunction in one of four related lawsuits, said the appellate judges should not be hurried in making a thoughtful and careful decision on the appeal.
"The administration is wrong to try to artificially rush the Ninth Circuit’s deliberations and ask the Supreme Court to take this case up prematurely," said Theodore Boutrous Jr., of the Los Angeles-based firm Gibson, Dunn, and Crutcher, in an email.
The Justice Department did not immediately return a request for comment Wednesday morning.
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