The Supreme Court’s refusal Monday to quickly hear the Trump administration’s Deferred Action for Childhood Arrivals appeal was a legal and policy setback for the president, but the politics are more complicated.
President Trump announced in September that DACA, a program offering deportation protections and work permits to certain immigrants who were brought into the United States illegally as minors, would end March 5.
Now the looming March 5 deadline will come and go without imperiling the so-called “Dreamers” as the case works its way through an appeals process that could take up to a year. An injunction against Trump’s DACA revocation that will allow beneficiaries to continue to renew their protected status will remain in place.
That’s obviously not the outcome Trump was hoping for. His administration was arguing that former President Barack Obama illegally created DACA, impinging on Congress’ constitutional prerogatives.
“The DACA program — which provides work permits and myriad government benefits to illegal immigrants en masse — is clearly unlawful. The district judge’s decision to unilaterally re-impose a program that Congress had explicitly and repeatedly rejected is a usurpation of legislative authority,” White House spokesman Raj Shah said in a statement.
“We look forward to having this case expeditiously heard by the appeals court and, if necessary, the Supreme Court, where we fully expect to prevail,” Shah added.
Trump pointed the finger squarely at the 9th Circuit Court, which he told the Washington Examiner last year he was open to breaking up.
“It’s really sad when every single case filed against us is in the 9th Circuit. We lose, we lose, we lose, and then we do fine in the Supreme Court,” Trump complained on Monday.
But for Trump, the point of eliminating DACA and having Congress pass a legislative fix was never solely about restoring proper separation of powers. The president was clearly hoping to use the broadly popular program as leverage to gain support for border security measures, including the wall, and other immigration reforms that he might otherwise have difficulty getting enacted even with Republican majorities in both houses.
Trump offered legal status, complete with a path to citizenship, to 1.8 million DACA-eligible immigrants — over 1 million more than the populaiton of people actually enrolled in DACA. In exchange for this, he wanted enhanced border security, the abolition of the diversity visa lottery and limiting family reunification immigration to nuclear families.
The latter two policies were expected to result in a steep reduction in legal immigration over time, which was controversial enough. Trump’s rhetoric also persistently turned off Democrats.
“We thought that the president’s main goal was to build a wall from sea to shining sea, a 19th-century answer to a 21st-century problem,” Senate Minority Whip Dick Durbin, D-Ill., said on MSNBC Monday. “It turns out his goal is the deportation of Dreamers.”
For his part, Trump said he stood ready to make a deal but the Democrats didn’t really care about DACA.
Now without March 5 written in stone, if it ever really was, some of Trump’s leverage is gone. So too is the gradual loss in status for DACA beneficiaries whose protections were set to lapse between September and March, the fact that created such urgency among activists supportive of the program — along with the prospects of sympathetic Dreamers being deported or detained.
“Passing amnesty was always going to be tough for the base to swallow, especially after electing Trump,” said a Republican strategist who requested anonymity to speak candidly. “But enforcement against Dreamers playing out on national television would have been hard for voters to swallow too.”
A Democratic strategist who also requested anonymity echoed this statement, suggesting that the issue favors Democrats when it is not paired with a possible government shutdown. Even without the Dreamers becoming an enforcement priority, the strategist said Republicans would face tough questions when a sympathetic figure was inevitably ensnared in the immigration morass.
“There was no easy way for either side to back down and explain it to their base,” said the Democrat.
The Supreme Court may have granted them one, leaving the status quo mostly intact as both sides duke it out in the courtroom. Democrats don’t have to capitulate to Trump to keep DACA around for the time being. Trump can say he offered a deal but still held the line on his immigration framework, despite a balky Senate with only a small Republican majority.
Instead both sides live to fight another day.
