The Corner

Law & the Courts

After the Supreme Court’s DACA Ruling, What’s Next?

Pro-DACA demonstrators near the White House, September 5, 2017 (Eric Baradat/AFP/Getty)

Dan’s piece on the home page nicely explains the absurdity of the Supreme Court’s DACA ruling. In his conclusion, he writes, “DACA repeal will still happen — if Trump is in office long enough for DHS to finish the task.” This is probably true, but not automatic.

The weak sisters in the White House may well have greeted this decision with secret relief, in that it could let the administration off the hook for acting on DACA before the election. But letting the issue ride and simply blaming bad judges would be a mistake. It’s true that letting DACA recipients stay is widely popular, as polls repeatedly show. But it’s just not that important to people who might vote for Trump. And the administration can make the perfectly reasonable argument to DACA-curious voters that any DACA amnesty deal would be irresponsible if it didn’t include measures to prevent a recurrence of DACA (measures today’s radicalized Democrats could never accept, even in the most watered-down and adulterated form).

The greater political danger for Trump would be not pushing forward to re-rescind DACA. As Dan wrote regarding today’s ruling, “for those who wanted Trump to repeal DACA, it also means that their votes have, thus far, counted for nothing.” If those voters are going to show up in November, they need to see that Trump is doing his best to push past the obstacles placed before him by his enemies.

But Trump has displayed remarkable weakness recently — in response to the riots and the Bostock transgender ruling in particular. Bin Laden’s strong-horse–weak-horse dynamic is a general rule in human affairs, and Trump has been a weak horse lately. He can’t turn that around merely by tweeting that such rulings are “shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives” — he needs to act where he can, and he has plenty of opportunity here.

And in any case, the administration may not have a choice but to push ahead with re-rescinding DACA. As my colleague Andrew Arthur, a former immigration judge and Hill staffer, noted on a livestream we did earlier today, Attorney General Bill Barr will likely feel compelled to issue another analysis of DACA’s illegality (supplementing Jeff Sessions’ 2017 letter on the matter). This is because today’s Supreme Court ruling implicitly acknowledged the illegality of DACA in noting that the program was reviewable by the courts precisely because it is not, as the Obama DHS claimed, merely a passive exercise in non-enforcement, but rather an affirmative grant of benefits (a work permits, Social Security number, and more).

If Barr does that, acting DHS secretary Chad Wolf will be hard-pressed not to re-rescind the program, despite the likelihood that he’d rather not (since he’s merely the latest Trump DHS secretary not to agree with the president’s immigration agenda). And if the White House has any sense, it will pressure Wolf to act sooner rather than later, and avoid diluting the rescission measure with lots of special-interest exceptions.

As everyone on both sides agrees, this is ultimately Congress’s problem, because it’s the legislature’s job to, y’know, legislate. But until there’s a deadline, Congress isn’t going to do anything. And the only way to impose a deadline is to rescind DACA.

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