Supreme Court Declines DACA Case: Bruce Miller Reacts | Connecting Point | Jan. 29, 2019


>>FOR THE SECOND TIME IN
RECENT MONTHS, THE SUPREME COURT DECIDED NOT TO WEIGH
IN ON THE TRUMP ADMINISTRATION’S ACTION FOR
CHILDHOOD ARRIVAL’S PROGRAM. KNOWN AS DACA, THE OBAMA ERA
POLICY PROTECTS SOME UNDOCUMENTED IMMIGRANTS
BROUGHT TO THE UNITED STATES ILLEGALLY BY THEIR PARENTS. FROM DEPORTATION. BRUCE MILLER SPECIALIZES IN
FEDERAL COURTS. I ASKED FOR HIS COMMENT TO
THE COURT’S ACTION.>>IT WASN’T SURPRISING TO
ME BECAUSE THE GOVERNMENT ASKED FOR SOMETHING FAIRLY
EXTRAORDINARY, WHICH WAS FOR THE COURT TO RENEW A
DECISION OF THE FEDERAL DISTRICT COURT, THE LOWEST
FEDERAL COURT BEFORE THE APPEAL’S COURT THAT NORMALLY
WOULD SIT OVER IT, HAD HAD A CHANCE TO DECIDE IT YET.>>IT’S UNUSUAL FOR OUR
GOVERNMENT TO GET IN THE WAY OF THAT NORMAL PROCESS?>>UNUSUAL FOR OUR FEDERAL
GOVERNMENT, OUR EXECUTIVE BRANCH TO JUMP THE GUN THAT
WAY. AND IT’S DONE RARELY AND
IT’S ALLOWED EVEN MORE RARELY. SO THE FACT THEY DIDN’T ACT
IS NOT SURPRISING.>>WHY, IN YOUR. , OPINION, WASTHE TRUMP ADMINISN
TRYING TO CIRCUMVENT THE PROCESS?>>GET TO THE SUPREME COURT
AS QUICKLY TO TAKE ADVANTAGE OF THE FIVE VOTES YOU HAVE
FROM. THAT’S THE BIGGEST THING.>>THE VOTES THAT THE TRUMP
ADMINISTRATION WAS PROBABLY HEDGE BE ITS BET THINKING
THEY WOULD VOTE IN MY FAVOUR?>>THEY BELIEVE THEY HAVE
FIVE VOTES, YES. THE SECOND REASON IS THE
NINTH CIRCUIT IS REPUTED TO BE, I THINK ACCURATELY, THE
MOST LIBERAL CIRCUIT IN THE COUNTRY. TO BE ABLE TO SKIP THEM AND
NOT HAVE WHATEVER FORCE AND OPINION FROM THE NINTH
CIRCUIT MIGHT HAVE IN THE WAY BETWEEN THE DECISION
THEY WERE SEEKING REVIEW OF AND THE SUPREME COURT. I THINK THEY THOUGHT IT WAS
TO THEIR STRATEGIC ADVANTAGE.>>AND SO AT THIS POINT, THE
COURT HAS DECIDED FOR THE SECOND TIME, THE SUPREME
COURT HAS DECIDED FOR THE SECOND TIME NOT TO TAKE
ACTION.>>NOT TO TAKE ACTION. THEY DIDN’T ACT ONE WAY OR
THE OTHER FOR PETITION FOR CERCITIARY.>>HOW COMMON OR UNCOMMON IS
IT FOR THE SUPREME COURT TO KICK THE CAN IN THAT WAY?>>THEY DENY THE COURT A
LOT. THEIR CONTROL OF THE DOCKET
IS ALMOST COMPLETELY THEIR OWN AND THEY DO IT
FREQUENTLY AND FOR REASONS THAT WE DON’T ALWAYS
UNDERSTAND. SOMETIMES IT’S AS SIMPLE AS
FOUR WHO THINK THEY MIGHT WANT TO TAKE THE CASE AND IT
ONLY TAKES FOUR TO TAKE IT, REALIZING THAT IF THEY DO,
THEY MIGHT LOSE BECAUSE THE OTHER FIVE, THEY PREDICT,
WOULD NOT GO THEIR WAY. SO SOMETIMES YOU’LL SEE THE
COURT — FOR EXAMPLE, THERE WAS A CASE INVOLVING PLANNED
PARENTHOOD WHERE MOST PEOPLE AFFECTED THE DEFUNDING OF
PLANNED PARENTHOOD TO BE SOMETHING THE COURT WOULD BE
INTERESTED IN REVIEWING. JUSTICE KAVANAUGH JOINED
CHIEF JUSTICE ROBERTS AND THE LIBERALS IN DECIDING NOT
TO REVIEW IT TO THE OUTRAGE OF THE OTHER THREE
CONSERVATIVES. AND THAT COULD HAVE BEEN A
MATTER OF VOTE COUNTING. ANOTHER REASON, AND, OF
COURSE, THE COURT WOULD BE SATELLISILENT, THEY HOPED FOR A
POLITICAL RESOLUTION OF THE MATTER AND THINK IF THEY
MAYBE DEFER IT, THERE WILL BE ONE.
AND THAT COULD BE TRUE WITH THE DACA QUESTION.>>AND WHEN IT COMES TO
DACA, WHAT DOES THIS NOW MEAN, THE FACT THE COURT HAS
NOW TWICE SAID WE WON’T WEIGH IN YET, WHAT DOES IT
MMEAN FOR THE 7,000 OR SO FOLKS THAT WE’RE KIND OF IN
LIMBO?>>THAT FOR THE MOMENT THEY
ARE SAFE BECAUSE WHAT WE’VE GOT IS A DECISION OF TWO
INJUNCTIONS FROM LOWER COURTS THAT STOP THE TRUMP
ADMINISTRATION FROM ALTERING THE DACA THAT WAS IN PLACE
BY THE OBAMA ADMINISTRATION. ANOTHER INTERESTING REASON
HERE, WHY THE COURT MIGHT BE IN THIS PARTICULAR CASE, THE
CONSERVATIVES ON THE COURT MIGHT BE SEEKING TO AVOID
REVIEW IS THAT THEIR REPUTATION IS FOR SUPPORTING
A VERY, VERY BROAD GRANT OF EXECUTIVE POWER IN THE
CONSTITUTION. CAME UP IN THE KAVANAUGH
HEARINGS AND A COUPLE OF THE JUSTICES MIGHT BELIEVE THERE
ARE NO SERIOUS LIMITS ON EXECUTIVE POWER. THE CONSERVATIVE JUSTICES,
HOWEVER, WHEN PRESIDENT OBAMA WAS PRESIDENT,
STOPPED, VOTED TO STOP A PROGRAM VERY MUCH LIKE DACA. IT WAS A PROGRAM WHERE
PRESIDENT OBAMA DECIDED NOT TO DEPORT THE PARENTS OF
DACA KIDS.>>THAT WAS TEMPORARY
PROTECTIVE STATUS?>>THAT’S NOT TEMPORARY
PROTECTIVE STATUS. IT WAS CALLED THE DAPA
PROGRAM, DEFERRED ACTION ON PARENTS. AND THE SUPREME COURT ENDED
UP DIVIDING 4-4 ON WHETHER OR NOT PRESIDENT OBAMA COULD
DO THAT. THAT HAD THE EFFECT OF
SUSTAINING A DECISION OF A COURT OF APPEALS SAYING THAT
HE COULDN’T. BUT WHAT’S INTERESTING TO ME
IS THAT THE FOUR JUSTICES WHO VOTED AGAINST PRESIDENT
OBAMA ARE THE FOUR CONSERVATIVE JUSTICES WHO
NORMALLY SUPPORT A VERY BROAD GRANT OF EXECUTIVE
POWER.>>WOW, THAT’S FASCINATING.>>AND ONLY NOT DECIDED
BECAUSE JUSTICE SCALIA HAD DIED. NOT ONLY TO SHOW THEIR CARDS
THEY HAVE A DIFFERENT VIEW OF EXECUTIVE POWER,
DEPENDING WHO THE PRESIDENT IS.>>LET’S REMINDED PEOPLE
WHAT EXACTLY THE COURT IS TAKING A LOOK AT, BECAUSE
IT’S NOT THE LEGALITY OF THE PROGRAM, RIGHT.>>WELL, AT THIS STAGE OF
THE GAME, WE’RE AT A PRELIMINARY INJUNCTION
STAGE. THE DISTRICT COURT HAS NOT
DECIDED THE MERITS OF THE DACA PROGRAM FINALLY YET. ALL THEY HAVE DONE IS
THEY’VE SAID THAT THE TRUMP ADMINISTRATION DID NOT GO
THROUGH PROPER PROCEDURES, RENDERING THEIR DECISION
ARBITRARY.>>A TUG-OF-WAR OF THE TRUMP
ADMINISTRATION TRYING TO LEAPFROG THE PROCESS.>>THEY HAVE TRIED TO
LEAPFROG MANY THINGS INCLUDING AN IMPORTANT
STATUTE CALLED THE ADMINISTRATIVE PROCEDURE
ACT.>>WHAT’S THE NITTY-GRITTY
OF THAT?>>THAT WHEN THE GOVERNMENT
CHANGES THE RULES, THEY HAVE TO ALLOW THE POINT TO NOTICE
AND COMMENT ON THAT THEY’RE DOING AND HAVE TO PROVIDE AN
ADMINISTRATIVE RECORD THAT EXPLAINS ADEQUATELY WHY
THEY’RE MAKING THE CHANGE.>>BECAUSE IT WOULD NEED TO
PLAY OUT IN A WAY THAT PEOPLE COULD PUBLICALLY
COMMENT, HAVE ENOUGH TIME TO DO SO AND SO YOU SAW THE
STATE OF CALIFORNIA AND A FEW OTHER STATES KIND OF
JUMP IN AND SAY, HEY, HEY, NO.>>THAT’S RIGHT. AND ALL THAT’S HAPPENED IS A
PRELIMINARY INJUNCTION, NOT A FINAL JUDGMENT FROM A
FEDERAL DISTRICT COURT.>>AND SO IN TERMS OF THIS,
PRIOR TO THE TEMPORARY SHUTDOWN AGREEMENT THAT WAS
REACHED NOW THAT GIVES KIND OF THREE WEEKS OR SO OF
BREATHING ROOM, PRESIDENT TRUMP HAD BEEN EXTENDING
DACA AS A NEGOTIATING POINT AND WHAT HAPPENS NOW.>>YOUR GUESS IS AS GOOD AS
MINE. I DON’T KNOW WHAT HAPPENS. I ASSUME THERE WILL BE
DISCUSSION OVER THE NEXT THREE WEEKS ABOUT FOLDING
INTO WHATEVER KIND OF BUDGET AGREEMENT THEY MIGHT REACH. SOME EFFORT TO PROTECT THE
DACA PEOPLE. BUT I COULDN’T POSSIBLY
PREDICT WHETHER THAT WILL BE SUCCESSFUL, WHETHER IF IT IS
IT WILL BE SIGNED. I JUST DON’T KNOW. I THINK IT WILL BE UNDER
DISCUSSION IN THIS THREE-WEEK PERIOD AHEAD OF
US.>>FROM THE COURT’S
PERSPECTIVE, WHEN IS THE NEXT TIME THAT THEY COULD
TAKE UP THIS MATTER?>>THEY’RE NEXT MEETING TO
DECIDE WHETHER THEY’LL TAKE ANY MORE CASES AND THAT WILL
BE IN FEBRUARY. AND SINCE THEY DIDN’T ACT ON
IT, THEY COULD ACT THEN. BUT UNLESS THEY DID
SOMETHING EXCEPTIONAL, ACTING THEN WOULD PROMPT THE
ACTUAL ORAL ARGUMENT ON THE CASE TO HAPPEN NEXT TERM
RATHER THAN THIS TERM SO THAT IT WOULDN’T BE DECIDED
BY THE SUPREME COURT UNTIL 2020.>>SO WE’RE TALKING ABOUT
SEVERAL MONTHS BEFORE IT WOULD COME BEFORE THE COURT
AND THEN QUITE A BIT OF TIME.>>WELL, THEY COULD
CONCEIVABLY REVIEW IN FEBRUARY AND SET AN
EXPEDITED BRIEFING SCHEDULE BUT THE FACT THEY HAD THAT
IN FRONT OF THEM IN JANUARY AND DIDN’T DO I THINK MAKES
IT VERY UNLIKELY IF THEY DID EXCEPT IT FOR FEBRUARY, THEN
SPEED IT UP WHEN THEY COULD HAVE GRANTED REVIEW IN
JANUARY. SO I THINK IF THEY TAKE THE
CASE IN FEBRUARY, WHICH COULD HAPPEN, THEY WILL SET
IT DOWN FOR ARGUMENT NEXT TERM RATHER THAN THIS TERM.

2 Responses

  1. insert name here says:

    i feel so bad, but i cannot believe NO ONE said "sir, let's fix your hair." I have laughed sooo hard.

  2. Rose Engle says:

    Yeah the word here is illegal you know that means against the law so it's time for them to go bye-bye get the fuck out of here

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