Seventeen months after President Trump announced his plans to terminate DACA, the program remains on life support, thanks to three federal court injunctions that determined the president’s actions were unlawful. But now by the president’s own admission, he is hoping the Supreme Court will do the dirty work of actually ripping nearly 800,000 Dreamers out of their jobs and communities so he can use the chaos as leverage to push through his unpopular agenda to cut overall legal immigration. The Supreme Court must reject these ham-handed attempts to turn the highest court in the land into the White House’s political pawn and should defer to the lower court’s ruling.
Depending on what hour you read this, you may — or may not — hear the president or his allies talking about how they would include protections for DACA recipients in a bill to re-open the government. But to understand how we got here, it is important to take a step back and review the last two years and the true goals of the administration.
From the beginning the president understood that DACA and Dreamers are incredibly popular and didn’t want to bear the blame for terminating the program. The hardliners in his administration who have spent their careers trying to cut overall immigration levels also believed that the threat of deporting Dreamers would be a powerful bargaining chip for the president to force Congress to slash legal immigration levels. So what happened? Well the president really didn’t like the overwhelming, bipartisan condemnation of his decision to end the program that ran across nearly every media platform in the days after he terminated the program on Sept. 5, 2017, and decided he wanted to have some talks, and coverage of some talks, with then Democratic Leaders Nancy Pelosi and Chuck Schumer.
So they met, and a deal seemed possible. But no one could actually nail down what the president actually wanted. First, he wanted money for the wall, a trade Democrats reluctantly agreed to. But then the goal posts moved, as President Trump demanded that the most significant cuts to legal immigration in nearly a century be part of any legislative package. Republicans and Democrats balked at this proposal and the deal fell apart.
Then in the new year, this back and forth continued: first, the president infamously attacked a bipartisan immigration deal in the Oval Office; second, the government shutdown when Democrats refused to appropriate funds that could be used to deport DACA recipients in the absence of legislative protections for them; and third, the government reopened with the promise of votes on a series of bills concerning Dreamers.
In February, on the eve of a potential breakthrough, the administration again killed the compromise with demands for massive cuts to legal immigration. His administration issued a veto threat and, in truly awful fearmongering, even invoking the specter of 9/11. The plan, which included a massive $25 billion for border security, gained the support of eight Republican Senators and nearly all Democrats, but ultimately failed on a vote of 54 to 45. A separate vote was also held on the hardline plan demanded by the president, that would have radically cut legal immigration, and failed with a paltry 39 votes in support.
Weeks earlier in January, however, a California court entered a nationwide injunction against the administration’s termination of DACA, ordering DHS to begin accepting DACA renewal applications. As hope for congressional action dimmed and the country became consumed by the family separation crisis, action on DACA largely shifted back to the courts. In May, Texas filed an extremely-aggressive legal Hail Mary lawsuit seeking to end DACA, but it could not even persuade the same judge who had killed Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and has stated he opposes DACA to support their immediately terminate the program.
And how about the claims that the administration wants to help Dreamers? Well, the Department of Justice pressed on with Attorney General Sessions’ vow to use “every lawful measure” to end DACA. First, it threatened the Ninth Circuit Court of Appeals, demanding that it rule on the termination of DACA by a certain date. When the ruling didn’t come by the stated deadline, DOJ then tried to short circuit the appeals process for the second time (the Supreme Court said no the first time).
This is where we stand today, and the president hopes that in the next few weeks the Court will decide to do his dirty work and ruin the lives of 800,000 young people and their families by taking up the case and ruling against DACA this spring. Were DACA rescinded, the president could then watch 800,000 hard-working young Americans lose their ability to work and become subject to deportation or use them as leverage for a hardline set of demands that will never pass Congress.
There is simply no good reason for the Court to become complicit by submitting to the administration’s extraordinary and aggressive efforts to fast track this case outside the regular processes. The DACA program has been in operation for six and a half years. Surely the lives of hundreds of thousands of DACA recipients trump the president’s desire to hastily and unlawfully end the program. Appeals are working their way through the courts. Instead of rewarding the machinations of Jeff Sessions, Stephen Miller, and the president, the Supreme Court can let the courts below do their jobs and it will still have ample opportunities to take up this issue later in 2019 or after on the regular timeline.
In addition, Speaker Pelosi has already vowed early action on the Dream Act. There is a clear desire in the Senate to move forward with a bipartisan compromise that permanently protects the Dreamers. Why would the Court want to short circuit not only the normal judicial process but also undermine Congress’ efforts to resolve this fight? And of course, if the president were serious about protecting Dreamers, he could call on Senate Majority Leader Mitch McConnell (R-Ky.) to put a bipartisan bill–not a partisan bill slashing the asylum system or legal immigration levels–on the floor immediately.
Dreamers’ lives have been thrust into crisis, but there is no emergency that calls for the Supreme Court to become involved in the president’s scheme to play games with their lives. The Justices should allow the courts to rule and the Congress to work its will.
The true emergency would be a Court willing to take extraordinary steps just to help the president accomplish what both the rule of law and the political process have rejected.
Todd Schulte is the President of FWD.us, a bipartisan political organization dedicated to reforming America’s immigration system.