Donald Trump is renowned for a very well-developed sense of his own accomplishments and skills. Chief among these is his oft-touted strength as a tough negotiator in every context: business, foreign affairs, legislative relations. Unless federalism is the one realm where he is prepared to admit negotiating weakness, then rumors that he will, more than seven months after his inauguration, rescind this week the immigration initiative known as Deferred Action for Childhood Arrivals (DACA) do not make much sense.
The only reason to act on DACA now is a threat letter from Texas and nine other states issued almost two months ago purporting to establish a “deadline” of Sept. 5 for Trump to act. But here is what his advisors should be telling Trump: The Sept. 5 deadline is meaningless. Those advisors have almost certainly told him that whether or not to continue DACA is his decision – and one that could be made at any time in the future. That last point remains true regardless of the “threat” by Texas.
Understanding the threat is critical in any advice being given to the White House. The Texas “threat” is that, come Sept. 5, if Trump fails to act, Texas will ask the federal district court in Brownsville to allow a pre-existing case against Deferred Action for Parents of Americans (DAPA) to be amended and converted into a challenge to DACA. At least the defendant-intervenors, represented by MALDEF, and perhaps the federal government, would oppose any such request, so it would take several weeks for a decision on leave to amend, likely taking us into October.
Even if – in an extraordinary departure from usual federal court procedure – Texas is allowed to amend its case, it would very likely not seek a preliminary injunction, as it had against the yet-to-be-implemented DAPA. A preliminary injunction requires some reason to preserve the existing state of matters, ordinarily that means some danger of irreparable harm. Unlike DAPA, the DACA initiative has been in effect for over five years; thus, the status quo would be to leave DACA in place. Texas would find it difficult to show that continuing an initiative that it never challenged for over five years is somehow going to deal the state some irreparable injury while the court works to resolve its legal challenge.
If Texas foregoes seeking a preliminary injunction – or files and is appropriately denied that interim relief – then any court order affecting Trump’s ability to continue DACA could only come after the court reaches a final judgment. Before the court could reach a final decision, it would have to allow discovery – evidence gathering – and depositions – witness questioning – and it would have to resolve critical factual disputes. Many of these disputes could center on standing and whether Texas has any injury traceable to DACA, or whether the benefits of DACA to the state outweigh the costs. Whatever the issues, getting to a final decision would not be quick. In all likelihood, a final decision would not come until well into 2018, even toward the end of 2018.
Thus, the soonest that DACA – and Trump’s ability to continue the initiative – could be affected by a court order is many months from now. In the meantime, Trump could use his tough negotiating skills with Congress and with Texas and the other states to arrive at protections for this group of immigrants that he has repeatedly stated is worthy of protection. He could then end DACA on his terms ― with a substitute in place. But, to do so, Trump must first stand up to Texas and not give in to an arbitrary deadline that does not relate at all to when any court order could actually affect the continued implementation of the DACA initiative.
It would be difficult to identify an issue more appropriate for Donald Trump’s much-vaunted negotiating prowess than DACA. DACA addresses a group of immigrants that the president, leaders from both parties, and a significant majority of the public agree is deserving of protection, yet a handful of state attorneys general are now threatening the immigration initiative. This is not the time or occasion to cave to those isolated attorneys general, and to concede weakness on such a critical issue, but the time to be a tough negotiator and leader for the nation.