Originally published by Politico
The March 5 deadline that President Donald Trump set for winding down a disputed immigration program continues to add a sense of urgency to the debate about so-called Dreamers, even though a court injunction and the administration’s own legal strategy have essentially wiped out the significance of that date.
“We still have until March 5th,” Juan Escalante of the immigrant advocacy group America’s Voice said Monday afternoon on CNN, discussing the Obama-era Deferred Action for Childhood Arrivals program, or DACA. “Before you know it, we’re going to get to March and who knows what kind of deal we have.”
At Monday’s daily briefing, White House press secretary Sarah Sanders was asked whether Trump would press ahead with plans to deport the Dreamers beginning March 5.
Instead of replying that the courts have essentially nullified the importance of that date, she said Trump was pushing for a deal and didn’t want to follow through on his plan to end deportation protection for Dreamers.
“We haven’t determined that,” Sanders said. “We’re hopeful that we don’t have to do that and that we don’t have to get there.”
Last September, the Trump administration told DACA recipients whose quasi-legal status and work permits were set to expire after March 5 that they were essentially out of luck and would be unable to renew their documents.
On Jan. 9, however, a federal judge in San Francisco ordered the administration to resume accepting renewals of DACA status. Many lawyers expected the Justice Department to move immediately to stay the judge’s order, but no such move was made. Instead, four days later, the Department of Homeland Security announced that it was again taking renewals, including from people whose status currently expires in March or anytime thereafter.
“It really looks weird,” Prof. Stephen Vladeck of the University of Texas School of Law said of the administration’s legal stance. “‘We’re in a hurry. We’re in a hurry.’ But, suddenly, on this point, ‘We’re not in any hurry.’”
Some attorneys closely following the litigation suspect that at least part of the administration’s motivation in not seeking an immediate stay — a move that would have preserved the March 5 date — was to remove urgency that Democrats were using to insist that the fate of the Dreamers was so pressing that it merited blocking government funding.
“Not rushing to stay it does give Congress the breathing room to actually do its job,” said Art Arthur of the Center for Immigration Studies, which favors stricter immigration policies. “I think they’re deliberately doing it to let it play out.”
The Justice Department did ask for what it called “immediate” review of the judge’s decision at the Supreme Court, urging the justices to allow the administration to dispense with the usual appeal, in this case to the 9th U.S. Circuit Court of Appeals.
Even if the justices agree to the rare request, however, the case is unlikely to be argued before April and probably wouldn’t be decided until June. In the meantime, the window for DACA renewals will remain open, with nearly everyone who has or had permits eligible to renew them for two years.
In a filing at the Supreme Court last week, the Trump administration insisted that its decision not to seek a stay was driven by concern about the consequences of blocking renewals that the court might let resume later.
“A primary purpose of the … orderly wind-down of the DACA policy was to avoid the disruptive effects on all parties of abrupt shifts in the enforcement of the Nation’s immigration laws,” Solicitor General Noel Francisco wrote. “Inviting more changes before final resolution of this litigation would not further that interest.”
Francisco did not invoke the robust debate over DACA underway among members of Congress and between lawmakers and the White House.
However, some of those fighting to preserve the program in the court were not shy in suggesting to the justices that they should butt out for now, in part because of the legislative arm-wrestling over the issue.
“In view of the ongoing discussions between Congress and the President regarding the DACA program, it would be prudent for this Court to avoid intervening earlier than necessary while those discussions proceed,” lawyers for the University of California wrote in a high court filing Monday.
“Adherence to usual procedures for appellate review is especially warranted here, where Congress is now considering legislation that would obviate any need for this Court’s intervention,” attorneys for six DACA recipients told the justices.
California Attorney General Xavier Becerra is also urging the Supreme Court to pass up review of the case now. That gives Congress more time to work on a legislative solution. But he also noted that it gave Dreamers more time to renew.
“The Trump Administration’s attempt to move our DACA case directly to the Supreme Court doesn’t just buck sound court procedure; it’s drastic and unnecessary,” Becerra said. “A federal court halted Trump’s decision to terminate DACA, based on our argument that his actions were arbitrary and capricious. As a result, any Dreamer whose DACA status has expired can reapply right now.
“We’ll keep fighting to preserve this ruling for the hundreds of thousands of Dreamers who have worked so hard to make America better.”