(Reuters) - The U.S. Supreme Court is scheduled to conference Friday on the Justice Department’s request for review of a Jan. 9 preliminary injunction issued by U.S. District Judge William Alsup of San Francisco, who ordered the Trump administration temporarily to leave in place an Obama-era program that allows young adults brought illegally to the U.S. as children to obtain two-year deferrals from the threat of deportation. On Tuesday, U.S. District Judge Nicholas Garaufis of Brooklyn complicated the justices’ debate by issuing a second nationwide injunction barring rescission of the DACA program.
How Judge Garaufis’ ruling will impact Supreme Court deliberations on the Justice Department’s petition for review of the Alsup injunction is not at all obvious. Remember, the Justice Department wants the court to do something extraordinary, leapfrogging the 9th U.S. Circuit Court of Appeals to take up an interlocutory trial court decision. As I’ve explained, the government’s primary rationale is that Judge Alsup was so manifestly wrong – both in claiming authority to second-guess the government’s rescission of DACA and in concluding the rollback was probably a violation of the Administrative Procedure Act – that the Supreme Court should act expeditiously to save everyone the trouble of continuing to litigate DACA rescission challenges around the country.
If Judge Garaufis had disagreed with Judge Alsup, his decision would have borne out the government’s criticism of the San Francisco injunction and justified the Justice Department’s request for immediate attention from the Supreme Court. A split between the judges would have allowed the government to call on the justices to resolve DACA’s legality before more muddling in the lower courts.
But Judge Garaufis ended up in the same destination as Judge Alsup (although they traveled slightly different routes to get there). So for the government, the only benefit of Garaufis’ ruling is its proof that other courts are indeed wrestling with DACA.
The Justice Department declined my request for comment on the Supreme Court implications of Judge Garaufis’ decision. It also declined to say whether it would file a supplemental brief on the Brooklyn ruling to the Supreme Court docket. As of 3 p.m. Wednesday, the Justice Department hadn’t filed anything.
Neither had the state of California, the regents of the University of California or several individual DACA recipients who filed briefs opposing the government’s request for Supreme Court review – but I think Judge Garaufis’ ruling offers stronger support for their arguments than for the Justice Department’s position. In essence, the opposition briefs urge the justices to allow the usual appellate process to play out before they take up the DACA issue.
The court, their briefs said, has previously granted review before judgment in a mere handful of cases, all in times of grave constitutional or judicial crisis. It’s been nearly 30 years since the justices last agreed to hear a case before a federal circuit weighed in. The opposition briefs called for the justices to defer to established protocols and allow the 9th Circuit to decide the government’s appeal of Judge Alsup’s injunction – which the Justice Department did not move to stay – before the Supreme Court takes the case.
Now, if the Supreme Court were to grant review of Judge Alsup’s injunction and hear the merits of the government’s decision to rescind DACA, it would be jumping over not just the 9th Circuit, which has expedited the appeal of Alsup’s decision, but also the 2nd Circuit, which would hear any appeal of Judge Garaufis’ injunction. Skipping one federal appeals is exceedingly rare. Skipping two seems to be unprecedented.
The best argument against granting the Justice Department’s petition is institutionalism: Even extremely important cases that are clearly headed for the Supreme Court are expected to follow the well-worn appellate pathway. I’d argue the new injunction decision bolsters the wisdom of convention.