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The Supreme Court's October 2015 Term was cut short because of Justice Scalia's unexpected passing. As a result, the Justices were unable to decide several of the most important issues on the docket. For example, the short-handed Court punted in Zubik v. Burwell. (To this day, the judiciary continues to grapple over the contraceptive mandate.) And the Court also split 4-4 in Texas v. U.S., which considered the legality of DAPA. At the time, I wrote in the Harvard Law Review that the latter case stood in a unique posture: "Because this case will likely return to the Court following the remand, there will be a rare opportunity to revisit the appeal in a new light."
Of course, I expected Hillary Clinton to win the election, and continue to defend DAPA, as well as DACA. Instead, Donald Trump won the election. His administration promptly terminated DAPA, and after pressure from conservative states, announced the decision to suspend DACA.
The Supreme Court, therefore, was never called upon to decide the legality of DAPA, as well as DACA, directly at least. Instead, the Justices were asked to decide a related, but distinct question: could DACA be suspended based on the Attorney General's conclusion that the policy is illegal.
In January 2018, the Solicitor General submitted a petition for certiorari before judgment. He urged the Court to hear the case as soon as possible in light of the sweeping consequences of the policy. The Solicitor General's urgency was obvious: every day that lapsed, as Dreamers further relied on the policy, would make it more difficult to wind down DACA. The Court denied that petition in February 2018. As a result, the issue could not–and indeed will not–be resolved until June 2020. Right before the next presidential election.
Now the case is at last before the Court. And, based on my reading of oral argument, we may get a third dodge: the Justices will rule that the rescission memorandum is not subject to judicial review. This decision would leave open the legality of the policy for the foreseeable future. And, due to the timing of the wind-down period, the policy may not be suspended until after the inauguration date.
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