He’s thinking about it, claims Axios, but all available evidence to this point suggests that he doesn’t want to do it. If he did, he’d have canceled DACA on day one to show his base that his deadly serious about cracking down on all forms of amnesty. Instead he not only preserved the legal status of DREAMers who were already enrolled in the program when he took office, he allowed new enrollees to register and enjoy legal status. How many times does he need to say something about showing “heart” to DACA members to signal that he wants them to stay?
But he may not have a choice. A bunch of red-state AGs have warned the DOJ that if Trump doesn’t make a move to unwind this program by September 5th, they’re going to amend the lawsuit they filed against Obama’s DAPA amnesty for illegal-immigrant parents of U.S. citizens to include DACA too. What does the White House do then? They’re not going to actually … defend amnesty in court, are they?
Legal experts believe if Texas and the nine other states do file a lawsuit to halt DACA, they’ll win — particularly if the same federal judge that blocked the broader immigration program under Obama, Judge Andrew Hanen, oversees the latest legal challenge…
“If Judge Hanen allows them to tack on a DACA challenge, no doubt he will enjoin DACA,” said Legomsky, now a law professor at Washington University in St. Louis. “It is more difficult to disrupt an ongoing successful program. … All that said, given the judges they’re likely to have, I think they have a very tough challenge.”…
“This isn’t difficult on the merits. Hanen already said DACA is unlawful,” said Josh Blackman, a libertarian-leaning professor at South Texas College of Law Houston. “If they sue on the merits, they should win in district court.”
In a way, this court challenge is the best thing that could happen to Trump. The border hawks in his base are annoyed with him for protecting DACA so far, but the left will go characteristically berserk if he ends up canceling the program after all. Teary DREAMers will be a staple on cable news for days, describing America as the only home they’ve ever known and loved. Republicans in Congress will vomit. So he’s stuck — unless he goes to court to protect the program, loses as badly as the experts quoted above think he will, and then is both rid of DACA and blameless in its termination. “I tried to protect it,” Trump can say. “The court threw it out.” Border hawks will rejoice that the program is over, the left will grumble about the judge instead, and all’s well. Even better, with DACA suspended and in limbo, Trump would suddenly enjoy some leverage in getting immigration legislation passed. So long as the White House is maintaining DACA, there’s no urgent pressure on Chuck Schumer to come to the table. Once a court tells the president that he can’t administer DACA anymore, though, a bill legalizing DREAMers becomes the only solution. “Losing” in court could give Trump some bargaining power with Schumer without having to play the meanie by tearing up DACA himself.
…Unless, that is, Trump ends up winning the suit. Imagine that fiasco. He loses before Hanen at the district court level, appeals, and then the Fifth Circuit overturns Hanen, restoring DACA. What the hell does Trump do then? Now border hawks will be really mad for having fought for the program in court, and meanwhile he’ll still be on the hook for administering it going forward. One possibility, of course, is that he and Sessions could simply choose not to appeal Hanen’s ruling. The left will make him eat crap for that, though. A better solution noted by the Politico piece quoted above is Trump and Sessions choosing not to defend the suit at all and instead allowing third parties, like AGs from states that support the program, to step in instead to defend it. Then Trump can’t lose. If DACA ends up being struck down, he’s rid of the program and ready to deal with Schumer. If DACA ends up being upheld, he could go on grudgingly administering the program while reminding border hawks that he didn’t lift a finger to defend it. Would that soothe his base? If pro-amnesty groups end up winning a huge court victory over an executive order that Trump could have torn up at any moment, I’m thinking … the right won’t feel too soothed. If anything, they might react to DACA being upheld in court by demanding more fervently that Trump cancel the program immediately and spoil the left’s victory.
Now that we all have headaches from gaming out the politics here, you can understand why Trump is eager to make a deal with Congress on DREAMers. The sooner this issue is out of his hands and the more he can extract from it in terms of security improvements, the less fraught his position will be.