At the start of his term, President Trump’s poorly written travel ban sparked angry protests, objections from business leaders, and confusion among those tasked with implementing it. Then over the next seven months, he tried to solve a number of thorny issues by deferring to Congress, and wound up in a feud with Republican leaders when they failed to accomplish his goals.
After a summer of firings, there’s a new team running the Trump administration, but it appears they intend to keep repeating this losing formula. On Tuesday, Attorney General Jeff Sessions is expected to announce that Trump is terminating the Deferred Action for Childhood Arrivals program, which has offered roughly 800,000 young, undocumented immigrants a temporary reprieve from deportation, with a six-month delay.
DACA has left Trump in a difficult position. In an effort to underscore his toughness on immigration, Trump vowed during the campaign to “immediately terminate President Obama’s two illegal executive amnesties, in which he defied federal law and the constitution to give amnesty to approximately 5 million illegal immigrants.” But shortly after his inauguration, Trump was looking to assure the public that he has a “big heart” and would “take care of everybody,” so he told ABC News that Dreamers “shouldn’t be very worried.”
Trump put off making a decision on the program, so in late June the attorneys general from ten conservative states tried to force his hand, threatening to file a legal challenge to DACA on September 5 if Trump hadn’t killed the program by then. The New York Times reported on Monday that an exasperated Trump asked his aides to find “a way out” of this dilemma. His chief of staff turned to Congress:
Mr. Trump’s chief of staff, John F. Kelly, who had wrestled with crafting a compromise in his previous job as the president’s homeland security secretary, began consulting with Republican lawmakers and staff members for a quick fix, according to three officials familiar with the situation. He finally arrived at an inelegant solution to an intractable problem: Delaying a decision on the final fate of about 800,000 “Dreamers” covered by President Barack Obama’s executive action for six months, and putting it on Congress to come up with a legislative solution to the problem.
Meanwhile, the immigration hardliners in the administration advised Trump that he must make a decision:
The main pressure to end the program is coming from Mr. Trump’s hard-line policy adviser, Stephen Miller; Mr. Sessions; and his still-influential former chief strategist, Stephen K. Bannon, who believe that nothing short of a complete and immediate shutdown of the program will fulfill the president’s campaign pledges.
They have warned the president that immediate action is required to head off the lawsuits against the program brought by a group of red state attorneys general.
Apparently none of these aides told Trump there’s another extremely easy “way out” of this predicament: continue to do nothing. As Cristian Farias noted in New York last week, the threat to file on September 5 “lacks merit, is internally inconsistent, and there’s little evidence that it was dreamed up for any other reason than political grandstanding.”
Thomas A. Saenz, president of the Mexican American Legal Defense and Educational Fund, explained in the Huffington Post that the states are threatening to ask a federal district court to amend an existing suit over Deferred Action for Parents of Americans, which would have extended protections to Dreamers’ relatives. That would spark another legal battle, so it could be October before the courts decide whether the states could amend the DAPA case. While a preliminary injunction blocked DAPA from going into effect, that wouldn’t make sense against DACA since immediately ending the program would disrupt the status quo.
By doing nothing, Trump might have been able to buy himself another year to come up with a DACA solution:
If Texas foregoes seeking a preliminary injunction – or files and is appropriately denied that interim relief – then any court order affecting Trump’s ability to continue DACA could only come after the court reaches a final judgment. Before the court could reach a final decision, it would have to allow discovery – evidence gathering – and depositions – witness questioning – and it would have to resolve critical factual disputes. Many of these disputes could center on standing and whether Texas has any injury traceable to DACA, or whether the benefits of DACA to the state outweigh the costs. Whatever the issues, getting to a final decision would not be quick. In all likelihood, a final decision would not come until well into 2018, even toward the end of 2018.
That would give Trump plenty of time to negotiate with Congress on a way to phase out DACA. Instead, he’s kicking the can to Congress, giving them six months to come up with a solution. And he’s further angering many congressional Republicans by announcing that they’ll need to tackle the historically difficult immigration issue just as they return to D.C. to address a slew of other difficult deadlines.
It’s likely Trump will still see a lawsuit over DACA, it will just come from different states. New York and Washington officials have both said they plan to sue if Trump ends DACA. “We have been working closely with legal teams around the country, and we expect to be joined by other states in this action,” said Washington Attorney General Bob Ferguson.
Meanwhile, the fate of 800,000 people who are integrated into American society will be left up in the air. President Obama is reportedly planning to speak out if Trump ends DACA, and protests have already started:
Vox notes it’s still unclear how the six-month phase-out will affect Dreamers:
1. At the end of the six-month period, is the Trump administration going to revoke 800,000 existing DACA protections at once, or is it going to “sunset” the program by simply preventing people from renewing their protections when their current 2-year window of protection expires?
2. Will people be allowed to renew their DACA protections during that six-month period?
Hopefully Sessions will address these questions in his prepared remarks on Tuesday, because he’s already announced he won’t be taking questions from reporters.
President Trump offered this unusually pithy prediction on Monday night:
It didn’t need to involve a fight over immigration on top of everything else, but who’s Trump to stand up to the attorney general of Texas?