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Trump improbably promises Congress will fix DACA if the Supreme Court strikes it down

Congress has repeatedly tried to pass a DACA bill, but is now at an impasse.

Protesters in New York march for protections for DACA recipients in January 2018.
Spencer Platt/Getty Images
Nicole Narea covers politics and society for Vox. She first joined Vox in 2019, and her work has also appeared in Politico, Washington Monthly, and the New Republic.

President Donald Trump is claiming that if the Supreme Court decision backs his choice to end Deferred Action for Childhood Arrivals, the program giving legal protections for young unauthorized immigrants, striking the program down, Congress will step in to protect them instead.

On Friday morning, Trump started tweeting about the case, which the court will hear in November, in reaction to comments from Christopher Hajec, director of litigation for the Immigration Reform Law Institute, an organization that opposes unauthorized immigration. Hajec had said that the justices should be examining the question of whether DACA is lawful, rather than probing Trump’s decision to end DACA.

Trump announced that he was terminating DACA back in September 2017, arguing that former President Barack Obama did not have the legal authority to create the program by executive action in the first place and had admitted as much. So far, courts have kept the program alive, shielding about 800,000 young unauthorized immigrants who came to the US as children from deportation and allowing them to keep their jobs.

In November, the Supreme Court will weigh whether Trump’s decision to end DACA was legal, though a final decision is not expected until 2020.

Although there is substantial bipartisan support for protecting DACA recipients, further debate in Congress is likely a dead end for now, and there’s no guarantee that Congress will take the issue up if the Court decides Trump’s decision to end the program was legal. After substantial deliberation, Congress had tried and failed to pass compromise legislation last year. Democrats in the House passed a bill to protect DACA recipients in June, but Senate Majority Leader Mitch McConnell said he would not likely bring the bill to a vote on the floor.

It is true that Obama himself repeatedly voiced misgivings about unilaterally suspending deportations by executive action before ultimately creating DACA anyway. When asked about his goals for immigration reform in a 2010 interview with Univision, Obama said he needed Congress’s support: “I am president, I am not king,” he said. “I can’t do these things just by myself.”

The following year, Obama said it was “just not the case” that he could suspend deportations through executive order. When he announced the DACA program in 2012, Obama conceded that the program was only intended to be a “temporary stopgap measure” and “not an amnesty.”

“This is not a path to citizenship. It is not a permanent fix,” he said.

Seven years later, the program has clearly become more permanent than Obama intended, but only because Congress has been unable — despite support from some Republicans — to pass legislation codifying protections for DACA recipients. As polls have repeatedly shown, an overwhelming majority of voters support permanent protections for DACA recipients, or “Dreamers.”

But last year, Democrats and Republicans failed to reach a compromise on DACA legislation during open debate on the Senate floor, despite McConnell’s blessing. A compromise bill that would have paired border security funding with protections for Dreamers seemed the most likely to pass, but support fizzled after Trump threatened to veto it.

Depending on how the Supreme Court rules, Congress could either choose to maintain the status quo or take up the debate again. If the justices side with Trump, Republicans will have significantly more leverage to offer Democrats DACA protections with funding for border security and whatever else might be on their immigration wishlist. But if the justices strike down Trump’s decision to terminate the program, Democrats may not need to push for a bill enshrining those protections in law.

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