The Supreme Court's Punt Is a Setback for Trump's Hardball DACA Tactics

He should make a peace offering to Congress now or suffer midterm losses.


The Supreme Court has declined to hear the Trump administration's appeal of lower court rulings ordering it to keep in place the Obama-era DACA (Deferred


Action Against Childhood Arrival) program that gave qualified Dreamers a temporary reprieve from deportation. (Dreamers are people who were brought to this country without proper authorization as minors but have grown up as Americans.) This is a strategic—not a substantive—blow for Trump.

But it does mean that immigration doves in Congress may no longer have to swallow the turd enchilada that he has been trying to serve them.

Two separate federal district courts in New York and San Francisco had issued an injunction barring Trump from scrapping DACA on March 5 as he had planned. The San Francisco court even ordered Trump to continue to renew the DACA status of all those who already have it—although it did not require the administration to issue it to new Dreamers.

The administration, eager to have the issue settled before the November mid-term elections, was trying to short-circuit the legal process by going straight to the Supreme Court rather than first appealing to the relevant circuit courts. This was a somewhat unorthodox step that the Supreme Court clearly didn't dig. That, however, does not say one way or another how the court will ultimately rule when—not if—it does take up the case later this year. The appeals court process will last several months and it is extremely likely that there will be a split in the circuit courts. But which ever side loses will appeal.

Indeed, as I have argued before, contrary to the assertions of its critics, the administration is highly likely to prevail for the simple reason that Congress has handed the executive vast authority to set immigration enforcement priorities as it sees fit. It has the power to give deportation relief—though not permanent legalization—to vast numbers of immigrants. This means that President Obama was acting perfectly lawfully when he enacted DACA and President Trump is acting perfectly lawfully in scrapping it. What one executive giveth, the other can taketh away.

Still, even if the Trump administration eventually prevails in court, the Supreme Court's punt back to the lower courts will cost it a great deal of leverage in ramrodding its extreme and sweeping designs through Congress. Trump thought that by scrapping DACA and setting Dreamers up for deportation he could use them as leverage to force Congress to not just give it $25 billion-plus for a border wall but also agree to changes that would make America's asylum program virtually useless and also cut legal immigration nearly in half.

However, this proved to be too odious for anyone but the extreme nativist lawmakers to swallow and, hence, Congress has been deadlocked for two months, unable to agree on a bill. And of course Trump's extreme mood swings, sometimes signaling he'd settle only for border wall funding and at others insisting on the whole enchilada, haven't helped.

But the Supreme Court's demurral has pulled the rug out from Trump's hardball tactics. If Trump does not cut a deal with Congress now and get something done, the whole issue will come to a head before the midterm election when the court does issue a final ruling.

Deporting Dreamers then will make for terrible optics, especially since they are a highly sympathetic group whose legalization a vast majority of Americans support. It'll mobilize Hispanics against Republicans in Nevada, Florida, California, and Arizona even more, deepening the GOP's expected election losses, ushering Democrats into one or both chambers of Congress.

So if Trump were as savvy as he seems to think he is, now would be a good time to stop listening to nativists such as White House aide Steve Miller and cooking up something more digestible.