President Trump this week hinted that he might be able to extend the March 5 deadline he set for Congress to pass a bill covering recipients of the Deferred Action for Childhood Arrivals program, if Republicans and Democrats aren't able to agree on a new legislative framework for so-called "Dreamers."
“I certainly have the right to that, if I want," Trump said Wednesday when asked if he could push the date back.
But immigration lawyers and even many in his own administration disagree, in large part because in the minds of Department of Homeland Security officials, the DACA program has already been repealed, and there's nothing left to extend.
Confusion over DACA's rescission stems from the deadlines the federal government gave existing beneficiaries of the program when it announced on Sept. 5 that the Obama-era initiative was being rolled back. The first was a four-week window that DACA participants could use to renew their status if it expired at any time between Sept. 5, 2017, and March 5, 2018.
But that doesn't mean the program can simply be extended beyond March 5. To the contrary, DACA was effectively killed on Oct. 5 when DHS stopped accepting any initial requests or renewal applications from people who came to the U.S. as minors and illegally stayed.
Therefore, the March 5 date just marks the end of the grace period established in the hope Congress would propose another solution.
That means as of Oct. 5 of last year, there's "nothing left to extend," Royce Murray, policy director at the American Immigration Council, a 501(c)(3) nonprofit, told the Washington Examiner.
As Trump himself suggests, he's the president and he could introduce some new, similar initiative. But that would conflict with all the arguments his administration has put forth against DACA, which they say is unconstitutional.
"While the new DHS Secretary could theoretically issue a new memo to re-create the DACA program, they would have to distance themselves from the policy and litigation positions that DOJ and DHS have been taking in opposition to the program," Murray wrote in an email.
That includes President Trump's Jan. 25, 2017, executive order directing federal agencies to "faithfully execute the immigration laws of the United States," which states the government cannot "exempt classes or categories of removable aliens from potential enforcement."
In addition, a Sept. 4 letter from Attorney General Jeff Sessions advised DHS that DACA "was an unconstitutional exercise of authority by the Executive Branch" led by former President Barack Obama.
"Likewise, DOJ and DHS are challenging the federal district court order out of San Francisco requiring [U.S. Citizenship and Immigration Services] to reopen DACA renewals b/c they shut down the process improperly," Murray said, referring to the service within DHS that oversaw the granting of DACA work permits.
"While this may be more of a procedural issue, the administration’s position to date continues to be that DACA was unlawful, so any effort to create a new DACA program would have [to] explain the contradiction," Murray added.
In theory, it could be possible for Trump to extend the grace period past March 5, as a signal to DACA recipients that no action will be taken against them. But the administration has already sent that signal, and officially drawing out the grace period could be a bureaucratic mess that would involve taking more time to reconsider new applications, after many have been told their opportunity to do so came and went.
In a memo outlining the phase-out timeframe, then-Acting Homeland Security Secretary Elaine Duke described how DHS would assess properly filed first-time DACA requests accepted by the department as of Sept. 5. DHS would also evaluate pending renewal documents from current beneficiaries that had been successfully submitted.
DHS and DOJ declined to comment to the Washington Examiner about the process, citing pending litigation. The Trump administration is party to multiple lawsuits over the repeal of DACA.
But current Homeland Security Secretary Kirstjen Nielsen has publicly reiterated DHS' stance against Trump taking executive action to extend the program in any way if Congress fails to reach an agreement.
"I believe the Attorney General has made it clear that he believes such exercise is unconstitutional," she said during a Senate Judiciary Committee hearing earlier in January. "It's for Congress to fix."
Trump's remark Wednesday is the second time he's been out of sync with his own administration regarding DACA.
"The president's comment to me was that, ‘We put a six-month deadline out there. Let's work it out. If we can't get it worked out in six months, we'll give it some more time, but we've got to get this worked out legislatively,'" Sen. James Lankford, R-Okla., said in October, relaying a telephone conversation he had with Trump that day.