U.S. Solicitor General Noel Francisco petitioned the Supreme Court on Monday to grant certiorari before judgment in three legal challenges to the Trump administration’s ending of the DACA amnesty program for illegal aliens.

Former President Barack Obama publicly stated at least 23 times in during his first term in office that he would like to grant some form of amnesty to illegal aliens, but that the Constitution mandated that only Congress had authority to do so. When Congress resisted his efforts, Obama evidently changed his mind about the Constitution, announcing in verbal remarks in 2012 he would grant amnesty through executive action. 

Although there was no executive order or presidential memorandum to that effect—a fact frequently misreported by television pundits who erroneously reference “Obama’s executive order”—Homeland Security Secretary Janet Napolitano issued a “guidance document” creating the Deferred Action for Childhood Arrivals (DACA). This program was styled as guidance for prosecutorial discretion, defining a class of aliens unlawfully present in the country regarding whom immigration authorities would take no enforcement action. This class included more than 400,000 illegal aliens in 2012, primarily consisting of persons brought to the United States while minors, but many of whom were then in their twenties, and in 2018 are approaching their thirties. 

Then in November 2014, the Obama administration expanded DACA into a larger amnesty, Deferred Action for the Parents of Americans and Lawful Permanent Residents (DAPA), covering perhaps 4.3 million additional illegal aliens, out of the 11 million that the U.S. government considers the minimum possible number of total illegal aliens presently in the nation.  

Texas Attorney General Ken Paxton led a coalition of 26 states challenging DAPA. Texas asserted first that the Administrative Procedure Act (APA) required DAPA to be promulgated as a rule with notice and comment. Second, Texas argued that if the procedural requirements were met, DAPA was nonetheless also a substantive violation of the APA as incompatible with the Immigration and Nationality Act (INA), and thus “contrary to law.” Third, Texas maintained that even if procedurally correct and permitted by the INA, that DAPA violated the president’s duty under Article II’s Take Care Clause, which requires that the president “shall take Care that the Laws be faithfully executed.” 

Paxton prevailed in U.S. District Court for the Southern District of Texas, with Judge Hanen holding that DAPA was an APA procedural violation. The U.S. Court of Appeals for the Fifth Circuit affirmed, holding that the record supported the conclusion that DAPA violated the APA both procedurally and substantively. Both courts abided by the doctrine of constitutional avoidance, and thus did not opine on the Take Care Clause argument. 

The Supreme Court granted cert, but Justice Antonin Scalia suddenly passed before the case was decided. The judgment of the Fifth Circuit was affirmed 4-4 by an equally divided Court, a decision that leaves that judgment in place but has no precedential value. 

Subsequent to President Donald Trump’s taking office, then-Attorney General Jeff Sessions issued a legal memorandum explaining that DACA is legally infirm for the same reasons the Fifth Circuit held DAPA illegal. Acting Secretary Elaine Duke at the U.S. Department of Homeland Security (DHS) acted on Sessions’ memorandum, and started winding down DACA. DHS Secretary Kirstjen Nielsen has continued that wind-down. 

The University of California filed suit, followed by other organizations. They argue that even though the prior administration created DACA by executive fiat, the APA did not permit the current administration from ending DACA without (at minimum) notice-and-comment rulemaking. The plaintiffs chose their forums well, including a district in California, another in New York, and a third in Washington, DC. The challengers prevailed in all three of those lawsuits, all of which are currently pending before the U.S. Courts of Appeals for the Ninth Circuit, Second Circuit, and D.C. Circuit, respectively. 

On Nov. 5, 2018, Francisco filed a petition for certiorari before judgment under Supreme Court Rule 11, attempting to bypass the circuit courts and secure a final Supreme Court decision before the end of the current Term. 

This is not the first time he has invoked Rule 11. Francisco attempted to leapfrog the Ninth Circuit in the aforementioned case brought by the University of California by its president, who ironically is no one other than former DHS Secretary Janet Napolitano. 

However, in February 2018 the Supreme Court denied that petition. That move was not at all surprising, although Francisco had a realistic possibility of obtaining review, so filing the petition was worth the effort.  

It is extraordinarily rare for the Court to grant a Rule 11 petition for cert before judgment. As the court of final resort, the justices vastly prefer to have a full-fledged appellate opinion to review, and for that matter to await multiple decisions which may provide a circuit split showcasing the best reasoning on both sides of the issue. A cursory survey suggests that the last time the Supreme Court granted cert before judgment was in 2002 in Gratz v. Bollinger, so that Gratz could be decided alongside Grutter v. Bollinger, both cases challenging the University of Michigan’s racial preferences. Decisions in both cases came down in 2003.  

However, it should be noted that the Court put a shot across the bow of the appellate courts in this litigation. When denying the SG’s Rule 11 petition in February 2018, the Court included the statement that it “assumed that the Court of Appeals will proceed expeditiously to decide this case,” and thus that the extraordinary measure of accelerating the case was not necessary. 

The Ninth Circuit has evidently completely ignored the Supreme Court’s explicit admonition to decide this matter quickly. Briefing was completed in April and the case was argued on May 15. Six months later, no decision has been rendered.

The standard cutoff for cases in each Term is the last conference in January, which this Term will be January 18. Francisco renewed his request before judgment on November 5, giving time for cert to be perfected and the petition to go to conference before the January cutoff. He filed identical petitions in two other pending challenges, one from New York and the last from Washington, DC. 

“An immediate grant of certiorari is necessary to obtain an appropriately prompt resolution of this important dispute,” the petition reads, noting that if the annual cutoff passes, “the government would be required to retain a discretionary non-enforcement policy that DHS and the Attorney General have correctly concluded is unlawful and that sanctions the ongoing violation of federal law by more than half a million people.” 

The justices’ decision on whether to grant the renewed petition will be instructive for future cases in terms of where the Court draws the line for Rule 11, and also whether the SG’s making this request on behalf of the United States is treated more favorably than that of a private litigant. 

The cases are U.S. Dep’t of Homeland Security v. Regents of Univ. of Cal., Trump v. NAACP, and Nielsen v. Battalla Vidal, Nos. 15-587, -588, and -589 at the Supreme Court of the United States. 


Ken Klukowski is a member of the executive committee for the Federalist Society’s Federalism and Separation of Powers Practice Group. Follow him on Twitter @kenklukowski.