The Supreme Court may have rejected President Donald Trump’s attempt to end protections for Dreamers. But it also offered him a path to try again.
The ruling sets up Trump for a politically perilous choice of his own creation. He can either side with the prevailing opinion among Republicans — and Americans — and protect Dreamers. Or he can appeal — once again — to his hard-line base and use the court’s ruling to take another shot at eradicating the measures that have allowed nearly 700,000 immigrants who were brought to the country illegally as children to work and live in the U.S.
Trump’s decision will depend, like so many other immigration decisions, on how aggressively hard-liners, including activists and influential media personalities, push him on the issue, according to three people familiar with the White House’s thinking. Either way, it’s a pivotal moment for Trump. While it’s highly unlikely Trump could actually end the program before the November election — his last attempt included a six-month wind-down period — his messaging on the issue will have ramifications for his reelection campaign. Democrats on Thursday signaled the issue would be central to their 2020 strategy.
“If Donald Trump wins in November, he will end DACA," said Tom Perez, chairman of the Democratic National Committee. "The future of Dreamers depends 100 percent on the outcome of the November election.”
Within hours of the ruling Thursday, the White House was inundated by an intense lobbying campaign from both sides on whether Trump should try again to shut the Obama-era program, known as Deferred Action for Childhood Arrivals, or DACA.
Moderate Republicans are pushing him to ease up on efforts to eradicate the protections for Dreamers — favored by a majority of conservatives and even Trump supporters — worried the move would risk alienating voters in a critical election that will determine which party controls the Senate.
Sen. Cory Gardner (R-Colo.), one of the most vulnerable senators up for reelection this fall, immediately urged his colleagues to give Dreamers a pathway to citizenship. “Congress still needs to reach a long-term solution for Dreamers in the United States — including a pathway to citizenship,” he tweeted.
Meanwhile, immigration hard-liners are pushing Trump to make good on one of his most significant 2016 campaign promises and send a signal to other immigrants who might try to bring their children to the country illegally.
“We encourage the Trump administration not to give up but to end DACA now to preserve the rule of law, protect our borders and ensure the public safety,” said Tom Fitton, the president of the conservative group Judicial Watch who has discussed immigration with the White House.
Trump initially lashed out at the Supreme Court over the 5-4 ruling — the second time the high court has ruled against him in a high-profile case this week. On Twitter, he blasted the “horrible and politically charged” decision and urged Americans to vote for him so he can nominate more conservatives to the Supreme Court.
Then he signaled a path forward on DACA, though his intention was unclear.
“As President of the United States, I am asking for a legal solution on DACA, not a political one, consistent with the rule of law,” he tweeted. “The Supreme Court is not willing to give us one, so now we have to start this process all over again.”
The White House did not respond to a request for clarification.
Some immigration activists and lawyers are bracing for Trump to make another attempt at ending DACA.
While the Supreme Court ruled against Trump’s first attempt, it did so on relatively narrow grounds, arguing it was unlawful only because the administration did not consider all the options to rein in the program and failed to account for the interests of those who relied on it. The ruling thus theoretically left the door open to other legal rationales for ending DACA that take into account those factors.
“The Trump administration is likely to try to rescind the program again, since both parties in the lawsuit agreed that the administration has the authority to do so,” said Diane Hernandez, an employment and immigration attorney at the Hall Estill law firm. “However, it will have to correct the administrative and procedural errors made the first time around.”
Thursday’s ruling came as a surprise. Administration officials had expected the Supreme Court to allow Trump to end DACA, paving the way for Trump to use it as leverage to try to strike an elusive immigration deal with Democrats. Jared Kushner, the president’s son-in-law and senior adviser, had floated including protections for Dreamers as part of a broader immigration package, two people familiar with the conversations previously told POLITICO.
While Trump has lost that advantage, few thought he had any chance at getting a divided Congress to pass any broader immigration bill. Lawmakers have consistently failed at such efforts in recent years, and the landscape is even tougher now, given the ongoing coronavirus pandemic, a focus on police brutality and the looming election.
House Democrats have passed a bill that would provide legal status and eventual citizenship to 2.3 million Dreamers, including DACA recipients. But the Senate, which needs 60 votes to pass legislation, has ignored it.
Some Trump allies say the Supreme Court decision actually saves Trump the trouble of trying to negotiate an impossible immigration deal in an election year or having to shut down a popular program he has wavered on as president. When he moved to end DACA in 2017, he spoke of his “great heart” and “great love” for Dreamers.
“I don’t think it’s any surprise that many on the Hill would like to avoid a contentious fight over Dreamers so close to an election,” said one Senate Republican aide.
Trump is already lagging behind presumptive Democratic presidential nominee Joe Biden in both national and swing state polls. Trying to shutter DACA again could hurt his chances to appeal to Hispanics and slice into Democrats’ advantage with them. Some Republicans argue DACA should be rescinded because it was created through an improper use of executive authority but they would still like Dreamers to be protected through legislation.
A new POLITICO/Morning Consult poll this week showed a majority of registered voters said Dreamers should be allowed to stay in the United States. That includes 68 percent of Republicans, 71 percent of conservatives and 64 percent of those who approve of the job Trump is doing. Even 69 percent of those who voted for Trump in 2016 — when he vowed to deport Dreamers — said they should be protected. Just 12 percent said they should be deported.
“Anyone telling the president he should try to end DACA to appease 12 percent of the public in the lead-up to the election is putting hurting immigrants ahead of his electoral chances,” said Todd Schulte, president of FWD.us, a group working to protect Dreamers.
Trump made cracking down on immigration the centerpiece of his 2016 campaign, promising to build a wall on the southern border with Mexico, deport millions of migrants who arrived in the country illegally and end DACA, which provides renewable work permits to Dreamers.
As Trump runs for a second term, many of the campaign promises he made on immigration are unmet — a border wall remains largely unbuilt and so-called sanctuary cities, which limit their cooperation with the federal government on enforcing certain immigration laws, are still receiving federal money.
Trump has previously offered legislative proposals that would give Dreamers permanent legal protections in exchange for some of his hard-line immigration priorities, including cuts to legal immigration and border wall funding. But the offers failed in part because the president himself backed away after facing opposition from immigration hawks who accused him of going against his own campaign promises.
Democrats, suspicious of any immigration deals with Trump, are waiting to see whether their party wins back the White House and Senate in November. They are framing the election as a referendum on DACA. Biden, who was vice president when DACA was created, has vowed to reinstate the program and allow Dreamers to receive federal student aid, calling Trump’s initial decision to end the program “cruel and counterproductive.”
“If Trump attempts to repeal DACA again — an unconscionable action, particularly during this unprecedented public health crisis — he will be responsible for upending the lives of hundreds of thousands of young people and bringing harm to families and communities all across the country,” Biden said in a statement Thursday.