US President Donald Trump’s administration is increasingly bypassing liberal-leaning lower courts and moving straight to the conservative-majority Supreme Court to address legal challenges.
In the recent case involving the Deferred Action for Childhood Arrivals, or DACA, program, the government has passed over a California federal appeals court to reach the Supreme Court directly. Attorney General Jeff Sessions said the move was a “rare step” to bring about a quick and fair resolution.
Over the last year, the Justice Department has tried to bypass lower courts four times using a variety of legal procedures in many high-profile cases.
One of them is the legal battle regarding the possibility of abortions for pregnant immigrant teens being held in detention. The government also asked the Supreme Court to intervene in regards to the president’s travel bans, which targeted people from select Muslim-majority countries.
Kevin Russell, a Washington, D.C. attorney called the practice “unusual”, and said that it was “stretching the boundaries”
Strategy To Counter Legal Setbacks
Some legal experts believe that the strategy is understandable since so many of the administration’s policy initiatives are being challenged aggressively by political opponents, and often in courts where they are likely to find sympathetic judges.
Trump has repeatedly lashed out at the courts blocking his key policies, and has accused opponents of “judge shopping”. His critics now accuse his administration of doing the same at the Supreme Court.
John McGinnis, a professor at the Northwestern University Pritzker School of Law said that administration officials believe that they might fare better in the Supreme Court as it is more “conservative than the average circuit (appeals) court”.
Nonetheless many legal scholars said that skipping lower courts is still relatively rare.
Although there is no precise information regarding the number of times previous administrations have circumvented the legal process, the last time a case was heard by a high court which was officially filed in advance of judgment by an appeals court was in the year 2005. The case however did not involve presidential policy.
The Supreme Court typically takes up such direct appeals only when the case is deemed to be of “imperative public importance” and warrants immediate review.
A Justice Department official has asserted the government seeks emergency relief from the Supreme Court only when essential. The department for example did not challenge the ruling given by a lower court regarding transgender recruits joining the military .
Bypassing Lower Court Rulings
The Trump administration’s strategy of approaching Supreme Court has come in wake of repeated setbacks at the district and circuit court levels in several of its key polices involving immigration, transgender rights, energy and the environment among others.
Several of Trump’s executive actions have been blocked at least temporarily by lower courts, and furthermore these ruling are being made applicable nationwide.
For example in the DACA case, a San Francisco judge’s order against scrapping the program is for the entire country. According to Sessions this ruling defied “both law and common sense,” and he has questioned how one district court in San Francisco could decide on the nationwide mandate for the DACA program.
Likewise, last year the administration sought for the high court to stop an order by a Maryland federal judge to block Trump’s revised travel ban, as a measure to pre-empt a review by the 4th U.S. Circuit Court of Appeals.
Subsequently, it circumvented the 9th Circuit and approached the Supreme Court to provide clarification on its own ruling regarding Trump’s previous travel ban, now expired. The Supreme Court gave the greenlight to the government’s ban, but has agreed to address its legality by June.
The DACA and immigrant abortion cases are yet to be heard. .