President Trump is venturing into increasingly volatile legal terrain as officials reject new applications for the Deferred Action for Childhood Arrivals program, circumventing a Supreme Court ruling reinstating DACA, legal experts say and legislators.
The court ruled last month that the Trump administration had failed to follow federal procedural law or justify terminating DACA in 2017, calling the termination “arbitrary and capricious.”
DACA provides protection against deportation to so-called Dreamers brought to the United States as children. The bipartisan support Obama-era program has provided temporary assistance to some 700,000 young immigrants, with nearly 200,000 DACA recipients in California.
The court did not decide on Trump’s executive authority to rescind DACA, and offered the administration a roadmap on how to definitely try to end it.
But despite threatening another attempt to close the program, the president has not tried again. Monday, 25 days after the ruling, was the deadline for the administration to request a new hearing, it was not.
The White House’s refusal to act or restart the program establishes a possible confrontation with the court with few precedents, says Muneer Ahmad, a clinical professor at Yale Law School, who participated in a New York-based DACA lawsuit against the administration.
“The longer the administration refuses to accept and award new applications and refuses to issue a new rescission order,” said Ahmad, “the more it becomes a legal concern.”
The White House declined to respond to requests for comment Thursday, and the Justice Department did not immediately respond.
Immediately after the court ruled, Trump and his officials rejected the decision as “politically accused.”
“The Supreme Court asked us to resubmit DACA, nothing was lost or won,” Trump tweeted, trying to reframe the high-profile defeat on immigration, his signature campaign issue.
Since then, the administration has refused to process new DACA requests, advocates and lawmakers say, despite widespread legal consensus, including from Trump supporters and former officials, that slowly delaying the restart of the program violates the court order. .
On Tuesday, Democratic Senators Kamala Harris of California and Dick Durbin of Illinois, as well as 31 other senators, wrote to the acting secretary of Homeland Security demanding that the department “immediately comply” with the court ruling and “fully restore protections from DACA, as the The court decision unequivocally requires. “
The Citizenship and Immigration Services agency, which administers DACA, has rejected new applications or confirmed the receipt, but then did not act on them, according to lawyers. Jaclyn Kelley-Widmer, an associate clinical professor of law at Cornell Law School and an immigration attorney, said the USCIS is sending notices to these new applicants saying the agency “is not accepting initial submissions.”
Meanwhile, other USCIS employees say they have received no guidance on the Supreme Court ruling or new DACA requests. The agency did not immediately respond to requests for comment on Thursday.
The Trump administration has avoided traditional policymaking and has repeatedly sought to end Congress with immigration orders. However, the president’s comments in recent days have only added to the confusion.
Last Friday in an interview with Telemundo, he contradicted himself, saying he would issue an executive order on DACA, and then said it was instead a bill that “would give them a path to citizenship.” The White House followed with a statement saying Trump supports a legislative solution for DACA, which could include citizenship, but not “amnesty.”
Then, Tuesday at a Rose Garden press conference, Trump said he is working at DACA “because we want to make people happy.”
“We will deal with the DACA people in a very republican way,” he said. “I have spoken to many Republicans, and some would like to leave it out, but they really understand that it is the right thing to do.”
In 2017, then Atty. General Jeff Sessions declared DACA unconstitutional and lower courts issued orders that frozen the program, while the Trump administration appealed directly to the Supreme Court.
The administration was required to renew existing DACA cases, but it has blocked tens of thousands of people applying for DACA for the first time who became eligible once they turned 15.
In a statement released the day after the ruling, USCIS deputy chief policy officer Joseph Edlow said the decision “simply delays the president’s legal ability to end the illegal Deferred Action amnesty program for Childhood Arrivals.” .
In early July, Democratic senators wrote to Ken Cuccinelli, the acting undersecretary of Homeland Security, demanding that USCIS remove the statement from its website, including the “blatantly false claim” that the Supreme Court ruling “did not” it is grounded in the law “” they wrote “can only be read as a threat that USCIS will not comply with the Court’s order.” Cuccinelli has not responded, said Maria McElwain, a spokesman for Connecticut Democrat Senator Richard Blumenthal, one of the letter’s authors.
“We should not need to tell him that challenging the Supreme Court is completely unacceptable,” the senators wrote.
According to historians, a president who defies the court has few precedents.
Only a few cases approach. President Lincoln suspended habeas corpus to try to thwart a possible Confederate takeover of the Maryland government, and when Chief Justice Roger B. Taney ruled that only Congress could suspend the court order, Lincoln challenged the court, experts say (others dispute that reading).
Before that, when the court sided with the Native Americans in Georgia against the white settlers who tried to drive them off their land, President Andrew Jackson, infamous in his ruthless dealings with the Native Americans, showed no desire to threaten the been to comply, according to the historical record. But he finally recognized the authority of the court.
With Congress eager to avoid the issue of immigration reform, the final decision on DACA may come on Election Day.
Former Vice President Joe Biden, Trump’s Democratic opponent, has vowed to make DACA permanent on the “first day” of his potential administration, and also to protect their families from expulsion.
In November, Biden said in a statement after the court decision, “We will reject the president who tried to rip so many of our family, friends and co-workers from our lives.”
