Originally Published in Politico
Anita Kumar - July 24, 2020
The president has weighed strategy after strategy on DACA — some to pacify his hard-line base, some to appeal to Latino voters — just ahead of the election.
In the five weeks since the Supreme Court halted his administration’s attempt to end a program that offers legal protections for hundreds of thousands of Dreamers, Trump has been flailing over one of the most controversial and consequential decisions of his presidency.
Every few days, the White House seemingly adopts, then abandons, a new strategy. Initially, Trump said he planned to file new paperwork to try to end the program, using guidance from the court’s ruling. That never materialized. Trump later suggested he was seeking a deal with lawmakers to create a new version of the program. But the White House never reached out to lawmakers. Then, Trump floated a possible executive order, likely to narrow the program. That hasn’t happened.
And the clock is ticking: A court has already ordered the administration to start accepting new applications for the Obama-era program known as Deferred Action for Childhood Arrivals, or DACA, that protects immigrants who came to the country illegally as children.
The result is that few people, if any, know what will happen. Administration officials are telling different things to different people involved in immigration policy. And staffers are going back and forth internally with just over 100 days from the election.
“Whiplash” is how Karen Tumlin, an attorney involved in one of the cases that the Supreme Court ruled on last month, summed it up.
Any action he takes is a political minefield. The Trump campaign wants to energize immigration hardliners in the president’s base who say DACA represents egregious executive overreach before the November election. But it also wants to win over the swing voters, evangelicals and Hispanics who support Dreamers.
Trump moved to end the program in 2017, offering a six-month wind-down period designed to give Congress time to pass legislation to make the program permanent. But lawmakers never acted and in June, the Supreme Court rejected Trump's action on relatively narrow grounds, leaving the door open for him to try to kill it again.
Trump initially acknowledged that he lost the Supreme Court case and said he would try to kill the program a second time by writing another memorandum rescinding DACA that would start the lengthy process.
He later appeared to change his mind, saying a different legal interpretation of the case actually gave him more authority to act unilaterally on immigration and other issues.
He then confused even his own staffers when he appeared to not distinguish between executive and legislative actions, using the words “executive order” and “bill” interchangeably, and announcing on television that he would sign an immigration bill, though Congress had not passed one.
In the meantime, Trump’s staffers have been crafting separate executive orders on immigration, health care and taxes after an outside lawyer counseled the president that the Supreme Court’s DACA decision actually handed him more executive power despite a loss in the case.
The immigration order could be amended to offer protections for a more limited number of Dreamers, according to three people familiar with the discussions. But such a move risks backlash after Trump spent years arguing President Barack Obama acted illegally when he pushed through his own order to offer Dreamers legal protections in 2012.
María Teresa Kumar, president and CEO of the Latino political organization Voto Latino, who has spoken to the White House about DACA, said Trump is trying to end the program while appearing like he’s trying to fix it as a way to appease Hispanics, independents and evangelicals.
“He wants the headline to read he’s trying to fix DACA,” she said. “What he's trying to do is neutralize the opposition.”
Trump‘s politically risky position is arguably one he created himself by embarking on seemingly contradictory actions — cracking down on immigrants but insisting he will treat Dreamers with “compassion.”
Trump made immigration the centerpiece of his 2016 campaign, promising to build a wall on the southern border with Mexico, deport millions of migrants who arrived in the country illegally and terminate DACA, which provides renewable work permits to 700,000 Dreamers. But once in office, he often spoke of his “great heart” and “great love” for the Dreamers.
As he runs for office a second time, Trump once again talks tough on immigration while his political advisers try to slice into Democrats’ advantage with Hispanic voters. His campaign has created an advisory board and a coalition focusing on recruiting volunteers, collecting data and fundraising. Campaign aides say Trump’s hardline immigration policies appeal to Hispanic Americans, like all Americans, because they are worried about safety — but they say little about Dreamers.
Meanwhile, presumptive Democratic nominee Joe Biden, who was vice president when DACA was created, has vowed to reinstate the program, calling Trump’s decision to end the program “cruel and counterproductive.”
“President Trump has repeatedly offered to find a bipartisan solution to protect Dreamers, but said it had to be done while securing our borders and fixing our immigration system,” the official said, though it was Trump who actually ended up rejecting a bipartisan deal.
The White House and Department of Homeland Security did not respond to questions.
Activists and lawmakers on both sides of the issue have lobbied the White House for weeks. Immigration advocacy groups, prominent evangelical leaders and major companies have all urged him to to keep the program until Congress passes legislation.
Dan Stein, president of the Federation for American Immigration Reform, which has been in touch with the White House, said he hopes Trump plans to follow through on his pledge to end the program but understands that he may be playing politics to throw his opponents off balance. “The president seems to be trying to send intentionally conflicting signals,” he said.
But Todd Schulte, president of FWD.us, a group working to protect Dreamers, said Trump will only hurt himself and Republicans in November if he continues to side with the few people who want Dreamers deported — just 12 percent, according to a recent POLITICO/Morning Consult poll.
“The president, who is currently in open defiance of the Supreme Court, can either stop siding with those 12 percent by trying to end DACA, or continue his effort to harm DACA recipients and further crush his party’s political chances this fall,” he said.
Trump immediately said he would try to end the program again using a different explanation for killing DACA that would pass legal muster. “They want us to refile if we want to win,” he said in an interview with Fox News. “So, I'm going to refile, and it's going to work out for DACA.”
The paperwork to start the lengthy process has been widely expected for weeks but never came. Some administration officials said they were not able to file without first receiving a document from the Supreme Court, though immigration lawyers say that was not necessary. That order was filed Monday.
And the delay in paperwork doesn’t explain why the administration didn’t immediately start processing new applications. A Maryland court ordered the administration to do that and set a hearing Friday on the issue. If it fails to start accepting applications, the administration could be held in contempt, facing possible fines or other sanctions.
"From the Supreme Court down, the courts have made it clear: DACA stands, and now its doors are open to new Dreamers to apply,” said California Attorney General Xavier Becerra, who led the multistate coalition at the Supreme Court on DACA.
Even as he planned to scrap the program, Trump insisted he would protect Dreamers as part of a broader immigration deal with Democrats. But more than half a dozen congressional offices involved in DACA discussions in the past, including House Speaker Nancy Pelosi’s office, say they have not heard from the White House.
Sen. Susan Collins (R-Maine) said in a statement she hasn’t heard from the White House on immigration but urged her colleagues to protect Dreamers. “I have long supported a path to citizenship for Dreamers,” she said. “Congress should take up legislation so that these young people can stop living in fear.”
Earlier this year, Jared Kushner, the president’s son-in-law and senior adviser, had floated including protections for Dreamers as part of a broader immigration package, POLITICO reported in June. But administration aides knew a deal was unlikely and planned to use the lack of one to blame Democrats for being unwilling to come to the table, hoping the message would help the president appeal to Hispanic voters.
Finding a legislative solution is next to impossible for a divided Congress during an election year that has been dominated by the coronavirus pandemic. Democrats, already suspicious of any deals with Trump, have said they want to wait and see if their party wins back the White House and Senate in November before they proceed.
House Democrats have passed a bill that would provide legal status and eventual citizenship to 2.3 million Dreamers, including DACA recipients. But the Senate, which needs 60 votes to pass legislation, has ignored it.
In late June, Trump began to consider a different strategy altogether after reading a pair of op-eds by a former aide to President George W. Bush attorney, who said the Supreme Court’s DACA ruling actually gave the president more power than he realized.
John Yoo, who wrote the legal opinions that supported an expansion of presidential power after the 9/11 terrorist attacks, said that because the Supreme Court never said Obama was wrong to establish DACA it paved the way for another president to also act unilaterally. A president can reverse a predecessor’s decision, but the process is lengthy and could take years, he said.
“The Supreme Court gave the president of the United States powers that nobody thought the president had, by approving, by doing what they did — their decision on DACA,” Trump said on Fox News Sunday. “But the decision by the Supreme Court on DACA allows me to do things on immigration, on health care, on other things that we've never done before.”
Leon Fresco, an immigration attorney who handled immigration issues at the Department of Justice under Obama, agrees that because the Supreme Court did not invalidate the program altogether it leaves the door open for Trump to determine by executive order how he wants to treat the 11 million immigrants in the country illegally.
The White House is working on an executive order — modeled after a bill pushed by Kushner that failed to garner support on Capitol Hill — to give priority to high-skilled, well-educated immigrants over those who want to enter the U.S. based on circumstances involving their family or native country, according to two White House officials. Some have suggested a narrow DACA-like proposal could be added to the order.
“The longer Trump waits to respond to the Supreme Court on DACA, the more his efforts to end DACA will hang around his neck like an anvil weighing him down with voters he and Republican senators need this fall,” said Douglas Rivlin, director of communications for America’s Voice, an advocacy group. “One could argue that defying the Supreme Court would be to his advantage if the American people were with him on DACA, but they aren’t.”