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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 (DeferredDreamersLRSLUCY NICHOLSONREUTERS via Newscom 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.

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  • Juice||

    I'm not at all opposed to DACA or something like it, but it's fascinating to me that one administration can make law by executive fiat, but somehow the next administration can't repeal that same law by executive fiat. It's even crazier that the Supreme Court doesn't even want to bother hashing that out.

  • Scarecrow Repair & Chippering||

    It's not at all crazy for the Supreme Court to punt it back to the power courts. There's procedures to follow, and if the Supremes took every case that someone threw at them, they'd never get anything done.

  • Scarecrow Repair & Chippering||

    s/power/lower, although an interesting typoe.

  • E. Kline||

    Is "everyone" the president of the United States now?

  • Scarecrow Repair & Chippering||

    The President gets to personally decide the Supreme Court's cases?

  • Juice||

    Yeah, I realize now that the SC only declined to hear right now it because it didn't make its way through the regular process and might still hear it when it does.

  • buybuydandavis||

    This is what a banana republic looks like. Law is up to the whimsy of the apparatchik of the day.

  • Elias Fakaname||

    That judge should be arrested for sedition. I'm fact, most, of not all de karat appoimted judges are suspect. Progressives cannot be trusted to follow the law.

  • buybuydandavis||

    I like the cut of your jib.

  • Juice||

    Deporting Dreamers then will make for terrible optics

    And that's what counts the most.

  • JoeBlow123||

    Professional journalist at work.

  • Longtorso, Johnny||

    Everyone has warm cozy feelings about 'dreamers', nobody will be a single issue voter on that. They will be single issue voters on guns.

  • sharmota4zeb||

    When will people start the undocumented gun owner movement?

  • Cy||

    We could label them "stargazers" or some shit. Because apparently it's not about breaking laws or whats right for the people, it's about the PR campaign and the lame stream media.

  • buybuydandavis||

    Great.

    Supreme Court goes lawless too, letting stand a decision requiring an extension of a lawless executive order.

    Illegal executive orders, now and forever!

  • Scarecrow Repair & Chippering||

    They aren't deciding anything, they are simply saying follow the proper procedures, hit the lower courts first.

    I swear people don't read squat even for simple things like this.

  • Crusty Juggler||

    lol keep reading fag lol

  • buybuydandavis||

    The proper procedure is for the lower courts to actually follow the law.

    If the Supremes won't hold the judiciary in line for upholding the constitution in a timely fashion, Trump should tell the lower court to pound sand with their ruling.

    The Right always caves to the Lawless Left, and nowhere has that been more lengthy and relentless than with Judicial Authoritarians. Enough is enough.

    How many divisions does the Judiciary have?

  • Rev. Arthur L. Kirkland||

    Sounds like someone is threatening to go "the full LaVoy."

    All talk, I figure.

  • Red Rocks White Privilege||

    Sounds like someone is threatening to go "the full LaVoy."

    You mean that incident where the government was found to have unlawfully murdered someone?

  • Elias Fakaname||

    Trump should just ignore Obama's unlawful order anyway. Fuck that judge.

  • silver.||

    Yep. The courts called out Obama on some really egregious immigration EOs, but let others through. It clicked for some progressives after realizing that Trump now has the same power that their beloved Messiah had.

  • buybuydandavis||

    "The courts called out Obama on some really egregious immigration EOs"

    And Obama was perfectly fine with that.

    Rob 100 banks, get forced to give in the money back for 60 robberies. Net result - 40 successful bank robberies. He was always just playing the numbers, getting away with everything he could get away with.

  • Sevo||

    "INCOMING HIHN!"

    Yep, threads end up looking like a pasted-up ransom note.
    I'm surprised he doesn't change fonts to look even more spaz.

  • Crusty Juggler||

    The best part about Hihn threads are when Sevo - who is a World War II veteran - insults Hihn for being old.

  • Sevo||

    See that lawn? OFF!

  • Crusty Juggler||

    ^ The Greatest Generation

  • Rev. Arthur L. Kirkland||

    That is what cranky old-timers mutter when their trays show up with the applesauce they didn't order rather than the pudding they expressly requested.

    Then they forget about it and start mumbling about the "good old days."

  • Elias Fakaname||

    I'm looking forward to the days ahead where we bring back McCarthyism, but a thousand times more aggressive and come after subversives like you.

  • Crusty Juggler||

    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.

    Like a tater tot hotdish?

  • Crusty Juggler||

    Or Cincinnati chilli?

  • Leo Kovalensky II||

    You've obviously never had Cincy chilli. Comes out just like it went in...

  • Crusty Juggler||

    Like ambrosia salad?

  • Crusty Juggler||

    Or bierocks?

  • Leo Kovalensky II||

    Or turd enchiladas?

  • Crusty Juggler||

    No, that's not a real dish.

  • Leo Kovalensky II||

    Cultural apoopriation

  • soldiermedic76||

    Define compromise. Obviously compromise is a turd sandwich. Because all Trump is asking is that he gets something in return for giving the "immigration" doves something.

  • buybuydandavis||

    Repubs show their true colors in their unwillingness to press the power they have as the majority in both houses.

    They could get much of the base's immigration agenda through single issue legislation. But they don't. Because the Republican leadership doesn't want it.

  • Bubba Jones||

    How can they force trump to renew visas in a timely manner?

  • Bubba Jones||

    How can they force trump to renew visas in a timely manner?

    What happens if they treat them like rebate forms and reject every one that is in the wrong font and failed to include an original receipt?

  • Sevo||

    Mother may I?

  • silver.||

    Good lord. And you know the federal bureaucrats absolutely have it in them to be pedantic asswads like that.

  • silver.||

    Good lord. And you know the federal bureaucrats absolutely have it in them to be pedantic asswads like that.

  • silver.||

    Good lord. And you know the federal bureaucrats absolutely have it in them to be pedantic asswads like that.

  • silver.||

    ... among lefties.

  • Aloysious||

    ...wrong font ...

    All forms must be submitted in Wing Dings.

  • Get To Da Chippah||

    Deporting Dreamers then will make for terrible optics, especially since they are a highly sympathetic group whose legalization a vast majority of Americans support.

    Well, more accurately a vast majority of respondents to a WaPo/ABC News poll. I'm sure all those same respondents were just certain that a xenophobic, brown-skin-person-hating Trump would lose horribly in the 2016 election. But you go ahead and think the poll is a representative reflections of the 'vast majority of Americans'.

  • silver.||

    The cheers at the suggestion of "banning all semi-automatic weapons" at the CNN Town Hall also represented a vast majority of Americans!

  • Sevo||

    My email provider gets news feeds from AP. All week it's been 'activists ban guns', but the photo yesterday was amusing:
    Some kid holding up a sign "Ban the NRA"
    Uh, kid, starting with a (failed) attempt at banning the NRA is leaving you many zip-codes away from changing A-2.
    Those kids are both political props AND getting some bad advice.

  • silver.||

    It's really fortunate for us that the anti-gun lobby is so disorganized. Since they rely almost entirely on emotional persuasion, their campaign loses steam as soon as folks' attention is diverted elsewhere.

    I think a lot of people understand that the kids were props, and the gun control people have been leveraging tragedies to push their agenda for years. This mixes up the techniques, but the MO is still the same.

  • Rev. Arthur L. Kirkland||

    That confidence reminds me of the gay-bashers a decade ago. Those yahoos never imagined gay marriage could become American law in a few years.

  • Rockabilly||

    Next thing you know the Rev will be forcing the yahoos to bake him a gay wedding cake.

  • silver.||

    Gay marriage is essentially a civil liberty. Personal possession of firearms is even more specifically enumerated. Irrelevant argument.

  • Elias Fakaname||

    The left is so smug that I almost want to take away all rights gays have just out of spite for white progressive assholes. Also, besting the shit out of the white progressive assholes, but cackling evilly while doing it. Also saying things like 'silly rabbit, kicks are for ribs' while kicking them. I the ribs, and cackling evilly.

  • retiredfire||

    Except that it isn't law.
    And there's no such thing as homosexual marriage.
    Marriage is between a man and a woman, nothing can change that.

  • buybuydandavis||

    "Deporting Dreamers then will make for terrible optics"

    There would be dancing in the streets in much of America.

  • Old Mexican - Mostly Harmless||

    So if Trump were as savvy as he seems to think he is[...]


    He's as savvy as the Trumpistas who voted for him.

    That's a "NO".

  • TLBD||

    How anyone subscribes to the meme that Trump is stupid is beyond me. It really blows my mind.

  • sharmota4zeb||

    Because the teacher said that Republicans are stupid.

  • Cyto||

    So what is the legal reasoning here?

    They are here illegally. There is no disputing that.

    "We aren't going to enforce the law" was held out for a while by the administration. Now they want to say "We are going to enforce the law".

    Under what possible legal reasoning can the courts say "you cannot enforce the law"?

    Maybe I don't understand any of the moving parts here, but this sounds completely bonkers. DACA sounded pretty patently illegal in the first place.

    My operating assumption is that these court decisions come under the legal reasoning of "this is our preferred policy". Or "This is what we think is right and fair and just".

    Is this an accurate assumption? Or is there an actual legal argument here that isn't just a rationalization?

  • buybuydandavis||

    "So what is the legal reasoning here?"

    What part of BFYTW don't you understand?

    The Left is lawless. BFYTW is the base argument of all their legal arguments.

    I'm dumbfounded that a supposedly Right tilting court let this obscenity of a ruling stand. Counting on Trump not to rock the boat, like good little Cuckservatives have been unwilling to confront Leftist Judicial Authoritarianism for a century.

    I hope Trump tells the lower courts to go fuck themselves with a rusty pipe. Time to confront Judicial Authoritarianism.

  • Benitacanova||

    What's BFYTW? But fuck you too Wiggum?

  • TLBD||

    I don't think there is any sound legal reasoning. I'd like to see Volokh's take on it. I understand SCOTUS sent it back, but they're just going to end up bitch slapping the 9th again eventually.

    This is a legislative issue. It was never a judicial or executive issue. The 9th does permanent damage to the Judicial branch with these types of rulings, and SCOUTS should start taking that seriously.

  • Elias Fakaname||

    That judge should be removed and charged with sedition.

  • Migrant Log Chipper||

    Wouldn't bet the farm on the midterms if I were Dalmia or Team Blue. People's paychecks will be getting a bit fatter the next pay half according to my accountant buddy. I don't vote either team but will guess more takehome will trump DACA sympathy come November. Of course Trump or Team Nancy could either or both do something monumentally stupid in the next 6 months.

  • Elias Fakaname||

    I don't think Leone really give that much of a shit about the 'dreamers'. Especially if the economy is getting better.

  • Elias Fakaname||

    'Anyone', it 'Leone'. Fucking worthless cunt autocorrect.

  • sharmota4zeb||

    In related news, Russia Today reports that Greece is overwhelmed by the undocumented immigrants seeking shelter there. There is talk about creating a buffer zone for undocumented immigrants to live in and increasing boarder enforcement. Turkey has invaded Syria to make it easier to send Syrians back to the Syrian territory Turkey took.

  • Rebel Scum||

    I fail to see how this is remotely legal.

  • Rebel Scum||

    Meaning I think something done by exec order can be undone by exec order. End of story. That is it. There is nothing else to add.

  • damikesc||

    Where's the setback?

    DACA expires at a date and Trump can simply do nothing if he wants. Courts have zero authority to FORCE an executive action. What they've already done is wildly unconstitutional (there is zero logical explanation why an executive action cannot be undone), but the ball is completely in Trump's court. Either he gets what he wants...or the program dies.

    The program which, mind you, is illegal as is.

  • Elias Fakaname||

    Trump should look for ways to punish progressives for their insolence.

  • TW||

    I'm a bit unclear on what's supposed to happen with regards to DACA on March 5th. My understanding was that the original executive order was set to expire but didn't a lower court order the administration to renew the executive order or did it just order them not to rescind the order and to continue to accept new applicants through the original term?

  • loveconstitution1789||

    All this does is get more illegals to put their name and address down so ICE can find them easier.

    The age of easy illegal immigration is over. At least for 7 more years. If you are illegal and stay inside the USA, you deserve to get deported.

    Hey Shikha, I got 3 illegals deported last weekend. Bye bye illegals.

  • Elias Fakaname||

    We also need to get progressives arrested for shielding them. A felony conviction on a progressive's record can go a long ways towards destroying their life, which helps keep them from things like voting, or being successful.

    We are at war with progressives. It's time we started acting like it.

  • buybuydandavis||

    The relevant legal statute to prosecute those who aid and abet illegal aliens

    8 U.S. Code § 1324 - Bringing in and harboring certain aliens
    http://bit.ly/2ow2E3L

  • Benitacanova||

    The optics of rewarding lawbreakers with citizenship are far worse. Deport them all.

  • megabox hd||

    i think its right decision

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