At the very start of his campaign, Donald Trump deployed what proved to be a winning strategy: Making extreme statements on immigration, then immediately backtracking. “When Mexico sends its people, they’re not sending their best,” Trump famously declared when announcing his candidacy. “They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists.”
He quickly added: “And some, I assume, are good people.”
Trump has repeated this pattern again and again. A year ago, he claimed he would be extremely tough on immigration, vowing 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.” Then, just weeks after the election, he emphasized in several interviews that he has great compassion for Dreamers, those brought to the country illegally as minors. “I do have a big heart. We’re going to take care of everybody,” Trump told ABC News in January, adding that Dreamers “shouldn’t be very worried.”
On Tuesday, Trump performed his immigration flip again, and he did it in record time. After avoiding the issue for seven months, Trump was forced to make a decision on President Obama’s Deferred Action for Childhood Arrivals program, apparently because his aides failed to explain that the deadline set by conservative state attorneys general wasn’t real. Shortly after waking up, he laid the groundwork to blame Congress for failing to resolve his contradictory position of “taking care” of 800,000 Dreamers by kicking them out of the only country they’ve ever known.
Then, at 11 a.m., Trump sent out Attorney General Jeff Sessions to announce that he was ending “the Obama Administration’s executive amnesty policy” because it is unlawful, and “essentially provided a legal status” to Dreamers and “denied jobs to hundreds of thousands of Americans” (all of which is false or unproven).
Trump released a written statement, in which he said he would begin the “orderly transition and wind-down of DACA,” but provide a six-month “window of opportunity for Congress to finally act.” While he offered no details on how Congress should address the decades-old problem of immigration reform, he promised that it would be done with “heart”:
As I’ve said before, we will resolve the DACA issue with heart and compassion — but through the lawful Democratic process — while at the same time ensuring that any immigration reform we adopt provides enduring benefits for the American citizens we were elected to serve. We must also have heart and compassion for unemployed, struggling, and forgotten Americans.
Speaking to reporters in the late afternoon, Trump underscored that all those outraged by his DACA decision should direct their ire at Congress.
“I have a great heart for the folks we are talking about, a great love for them,” Trump said. “I have a love for these people and hopefully now Congress will be able to help them and do it properly.”
Trump added that members of Congress told him “they want to be able to do something and do it right.” Over the course of the day, many expressed serious doubts that Congress can actually pass immigration reform, and Politico released a poll showing that only 15 percent of Americans are in favor of deporting Dreamers.
Late on Tuesday night, Trump showed just how great his “heart” is for the most sympathetic group of undocumented immigrants. He confirmed, as some had speculated, that if Congress fails to find a way to allow Dreamers to stay in the country, he’ll “revisit” the issue.
Trump’s 140-characters of compassion for Dreamers may actually make their situation worse. There was a chance that the prospect of kicking out hundreds of thousands of undocumented immigrants with deep roots in America would have spurred Congress into taking a difficult immigration vote. But why would GOP lawmakers take the risk after Trump admitted that he’s bluffing?
The president doesn’t seem to understand that “revisiting” DACA in six months isn’t as easy as flipping a switch. The Department of Homeland Security stopped accepting DACA applications as of Tuesday, so anyone who was planning to apply is already blocked from the program. Those whose DACA protections are set to expire before March 6 have a month to apply for one last renewal. All other DACA recipients are set to revert to unauthorized status on March 6.
That means for at least the next six months, DACA recipients will be living in a state of fear and anxiety, unsure of whether they need to start planning for the possibility of deportation. If Congress fails to act and Trump doesn’t finish rethinking DACA by March 6, more than 275,000 people will lose their protections by the end of 2018.
Furthermore, it’s unclear how Trump could unilaterally declare DACA back on after his administration spent the day arguing that it’s illegal for the president to do so. In his statement, Sessions said that by enacting DACA, the Obama administration “deliberately sought to achieve what the legislative branch specifically refused to authorize on multiple occasions. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.”
Sessions went on to argue that if DACA were kept in place, it would be struck down by the courts:
Our collective wisdom is that the policy is vulnerable to the same legal and constitutional challenges that the courts recognized with respect to the DAPA program, which was enjoined on a nationwide basis in a decision affirmed by the Fifth Circuit.
The Fifth Circuit specifically concluded that DACA had not been implemented in a fashion that allowed sufficient discretion, and that DAPA was “foreclosed by Congress’s careful plan.”
In other words, it was inconsistent with the Constitution’s separation of powers. That decision was affirmed by the Supreme Court by an equally divided vote.
If we were to keep the Obama Administration’s executive amnesty policy, the likeliest outcome is that it would be enjoined just as was DAPA.
That argument may not be legally sound, but tell that to the conservative state attorneys general who just bullied Trump into ending a program he was content to continue ignoring. It seems unlikely that they’ll hold off on their court challenge just because Trump failed to make Congress solve the DACA problem for him.