Consider this a head start on the 2018 midterm campaign. Donald Trump’s on his way to Florida for the weekend, planning to meet with officials about the Parkland mass shooting and to get away as usual to his resort, Mar-A-Lago. On his way out, Trump took a parting shot at Democrats who blocked his preferred deal on DACA and border security in a Senate vote-off, and possibly a few Republicans as well:
It’s worth noting, as Allahpundit did last night, that Trump’s proposal got the least amount of support of the four major bills offered on the cloture call. It only scored 39 votes, as thirteen Republicans voted against it. Two Democrats crossed over and voted for the Grassley-sponsored bill, Heidi Heitkamp (D-ND) and Joe Manchin (D-WV), perhaps the two most endangered red-state Democrats in the upper chamber. Trump’s proposal didn’t even get a majority, cloture or not. Of course, none of the bills got the necessary 60 votes, which makes this somewhat of an academic point — for now, anyway.
Democrats think they can outwait Trump, in part because two federal courts have proscribed the president’s authority to end DACA. As long as the program remains operational, they can claim that they’re using what leverage they have to force Trump into a “clean DACA” deal, allowing them to dispense with funding for the border wall and the immigration-policy changes Trump has been demanding. However, that’s a risky strategy — and the Supreme Court may blow it up long before the midterms:
With the fate of the 700,000 Dreamers, who were brought illegally into the United States years ago as children, still in limbo, the high court’s nine justices were set to meet privately on Friday morning to discuss what cases they will hear.
If the court does not act on Friday, it could do so on Tuesday, after Monday’s Presidents Day holiday.
If they accept the Trump appeal, they would likely not rule on it until late June. If they refuse to hear it, the lower court ruling would stay in effect while litigation continues.
If this has to percolate through the lower courts and appellate level, it might not come to the Supreme Court until next term, which means Democrats won’t have to pay any consequence for refusing to restrict family unification policy and fund the border wall Congress authorized in 2006 — at least until after the midterms. If, however, the court decides to take it up immediately as an emergency, it might mean that DACA will come to a screeching halt in June, leaving Democrats to answer to very angry activists about why they surrendered their budgetary leverage in February and March.
We might find out today whether they will take up the case, but when they do, the White House has good reason for optimism. First, DACA’s provisions for work permits (among other issues) violates statutes already in place, which makes the Obama-era policy an unconstitutional violation of the separation of powers. Second, one president’s policies (in EOs or any other form) cannot bind succeeding presidencies. Even if one president can order DACA as a form of prosecutorial discretion, a succeeding president can undo it under the same authority. If that creates problems for program recipients, it’s a good reason why these types of policies should come in the form of statutes in the first place.
However, the value of Trump’s argument will only come into play when it becomes apparent just how badly Democrats shafted the DACA population. That won’t happen unless the Supreme Court intervenes in such a way as to allow Trump to shut it down, calling the Democrats’ bluff and reframing the debate on his terms again. Trump went further in his proposal than conservatives wanted to allow, offering a path to citizenship for nearly 2 million people in the country illegally in exchange for policies that would prevent the need for a DACA in the future — a border wall and changes in policies to discourage illegal entries down the road. That’s still a good solution to the DACA standoff; we’ll see if the Supreme Court provides a catalyst for a more rapid resolution.