The word from Politico is that DACA is, at long last, headed for the shredder — eventually. Supposedly Trump’s going to announce his decision to terminate the program this week but with a six-month delay for implementation, to give Congress time to work out a bill legalizing DREAMers by statute. Obama’s attempt to do that via executive order has always been legally dubious, with Trump himself attacking it as unconstitutional on the trail last year. Doing it by statute is another matter.
Question, though: Has Congress *ever* responded to an artificial deadline by passing something in time instead of kicking the can? They respond to certain drop-dead deadlines, like raising the debt ceiling, if there’s no way to avoid it and if the consequences of inaction would be unusually dire. There is a way to avoid the deadline in this case, though: Democrats could simply … call Trump’s bluff. Wait six months, then dare him to cancel the program as he swore he’d do. Would he?
Trump has wrestled for months with whether to do away with the Deferred Action for Childhood Arrivals, known as DACA. But conversations with Attorney General Jeff Sessions, who argued that Congress — rather than the executive branch — is responsible for writing immigration law, helped persuade the president to terminate the program and kick the issue to Congress, the two sources said.
In a nod to reservations held by many lawmakers, the White House plans to delay the enforcement of the president’s decision for six months, giving Congress a window to act, according to one White House official. But a senior White House aide said that chief of staff John Kelly, who has been running the West Wing policy process on the issue, “thinks Congress should’ve gotten its act together a lot longer ago.”
Clearly the six-month delay is Trump’s attempt to punt responsibility for this mess to Ryan and McConnell — which is fair, as it should be Congress’s responsibility to set the rules for immigration. That’s the core conservative critique of DACA from the beginning, that the president shouldn’t take it upon himself to “legislate” solutions for DREAMers just because Congress isn’t acting expeditiously enough to suit him. Trump inherited this byproduct of overreach from Obama and looked the other way at it for seven months, not only keeping DACA up and running but allowing new enrollees into the program. The only reason he’s acting to cancel it now, I’d bet, is that a bunch of Republican state AGs are about to sue him over the program. That would place Trump in a nasty political bind, forcing him to decide between defending Obama’s overreach in court and pissing off his base or canceling the program and being brutalized by the majority of the public that backs legal status for DREAMers. Left to his own devices, the president probably would have gone on quietly letting DACA operate. It’s Republican lawyers who forced this crisis, not him.
So he’s making the one move he can make to try to split the baby. Okay, he’ll say to his base, we’ll cancel the program — but we’ll also give Congress a shot to come up with a permanent solution. If Ryan and McConnell can’t make something happen and the program ends, Trump can try to argue that ultimately this was their failure, not his. If Ryan and McConnell can make a deal with Pelosi and Schumer, Trump can point to the security measures (like wall funding?) included in the deal as proof that border hawks won. He can also use a DREAM amnesty down the road when Democrats inevitably demand a broader amnesty for illegals as proof that he’s the reasonable one in immigration negotiations, not them. “I signed the DREAM bill, didn’t I?” Trump will say. “I’m sympathetic to some illegals. But not everyone who broke the law gets to stay.” That will seem like a sensible middle ground position to many undecideds. Amnestize the DREAMers, the people who came here as children through no fault of their own, and you can argue that that’s enough amnesty for America for the next 25 years or so.
But now comes the pushback, first from the most strident border hawks on the right…
Ending DACA now gives chance 2 restore Rule of Law. Delaying so R Leadership can push Amnesty is Republican suicide. https://t.co/iYOLxFWp7V
— Steve King (@SteveKingIA) September 4, 2017
…and soon enough from Democrats in Congress. Trump’s gamble is that Schumer will be willing to give him something — the border wall, e-Verify, anything — as part of a deal if he and the GOP make it abundantly clear that they’re willing to pass a DREAM amnesty. The more Trump and congressional Republicans stress that they’re sympathetic to DACA illegals and are willing to partner with Dems to legalize them, in theory the harder it’ll be for Schumer to demagogue the GOP as cruel for ending Obama’s program and the more Schumer will be compelled to come to the table. No less than Tom Cotton, who co-wrote the RAISE Act that would limit legal immigration, came out in favor of a DREAM amnesty this morning provided liberals in Congress are willing to pony up security improvements in exchange. You’ll hear a lot of that from the GOP this week, anticipating the attacks to come from Dems that they’re anti-DREAM by signaling how pro-DREAM they are.
I think Trump’s miscalculating, though. Schumer doesn’t want to make any “deals” on DREAMers, particularly when his party looks set to pick up seats in the House next fall. The polling is on his side; the public reliably strongly favors legalizing illegals who were brought here as children. And Schumer knows that if he makes a deal now on a limited amnesty, it might kill the chances of a broader amnesty for years to come per the logic I laid out above. The last thing an open-borders party wants to do is concede there’s a moral distinction between DREAMers and other illegals; they all need to be amnestized, not just the most sympathetic ones. So I expect Schumer to say, “No deal. We’ll agree to a standalone bill that legalizes DACA recipients but we’re not going to let the president hold these poor children hostage for his border wall or for anything else. This is a matter of basic human decency, not of treating people as bargaining chips.” And then he’ll wait six months and call Trump’s bluff. Next spring GOP primary races will be at full tilt and suddenly the president will be faced with a gut check of his own making — does he keep his promise and cancel DACA as scheduled, knowing the sort of backlash that’ll create in the media, or does he wimp out and keep the program going, destroying his credibility in the process? He could try to argue that it’s Democrats, not Republicans, who have always been ruthless hostage-takers in immigration bargains, ransoming basic security for the United States in return for legal status for lawbreakers. But in the end, it’ll still be his call to spike DACA or not. What would he do?
Schumer has another high political card to play. *If* it reached the point where Trump canceled the program and ordered deportations of DREAMers (which I doubt), Democrats would howl that it’s not just a callous act of removal against innocents, it’s a despicable betrayal by a government they trusted. Remember, in order to enroll in DACA, young illegals had to come out of the proverbial shadows and provide the feds with info on who they are and where they are. All of that info can now be used to find them and boot them out:
You could argue a la Mark Krikorian that it isn’t Trump who betrayed DREAMers, it was Obama, who enticed them with a program he had every reason to assume was unconstitutional. You could also note a la Gabe Malor that the DACA application form explicitly says that information provided could be used against them in removal proceedings later. Democrats and the media, though, will insist that this is a double-cross of especially vulnerable illegals, making the politics that much more toxic. That in itself might become Schumer’s pretext for refusing to do a deal on a DREAM bill: “We made a promise to these kids and now we have to keep that promise. Nothing, including border security, should stop us from honoring our commitments.”
Imagine how happy Ryan and McConnell must be to have this flaming bag of poo left on their porch before an already dicey midterm. Good luck, fellas!