If President Donald Trump wants to use DACA as leverage to force the Democrats to accept his border wall amidst the government shutdown, he won't have the Supreme Court to help him out. With a decision on Tuesday to not hear a challenge to the Deferred Action for Childhood Arrivals program, the Supreme Court denied Trump his only real chance to undercut Democrats in Congress in the midst of a battle he appears to be losing.
The Trump administration's hope had been that the Supreme Court would overrule the lower courts and allow him to end the program, which would provide him with leverage over congressional Democrats as the president continues to drag out the government shutdown in order to force the building of a border wall. The president had even predicted that the court would side with him during a cabinet meeting earlier this month.
"It will be in the United States Supreme Court," Trump said on Jan. 2. "So if we win that case — and I say this for all to hear — we'll be easily able to make a deal on DACA and the wall as a combination. But until we win that case, they don't want to really talk about DACA."
But a conservative Supreme Court struck down Trump's last hope on Tuesday.
Because a number of lower courts had stopped Trump from ending DACA on the grounds that he had not established a sufficient legal reason for doing so, with the Supreme Court passing on the case the program remains in place and continues to protect the nearly 700,000 people known as "Dreamers" who stay in the United States after being brought here without the proper documentation as children.
A number of commentators have noted that this is very bad news for Trump. As Steve Benen wrote for MSNBC:
Just so we’re clear, the Supreme Court didn’t issue any rulings on DACA this morning; the justices simply chose not to act on the issue at all.
The Washington Post added, “If the court sticks to its normal procedures, that would mean that even if it accepts the case as a later date, it would not be argued until the new term starting in October, with a decision likely in 2020.”
That’s not what Trump wanted to hear. Indeed, it makes his whole plan, such as it is, effectively impossible to execute.
In an article which included the headline "Supreme Court Leaves DACA Alone, Giving Democrats Little Incentive To Compromise," the Associated Press observed:
While the federal government might be able to end DACA for policy reasons under its own discretion, it can’t do so based on Sessions’ faulty belief that the program exceeds federal authority, the court held.
The administration has twice tried to sidestep the appeals courts and win a swift ruling by the Supreme Court. The justices rejected a first attempt last year as premature. In taking no action so far on the second request, the high court is signaling that it considers the issue less urgent than the administration does.
Meanwhile, constitutional scholar Laurence Tribe told Jennifer Rubin of The Washington Post that "the absence of a circuit split would not have prevented the Court from agreeing to hear a case of this enormous national significance at the earliest possible opportunity unless it was reluctant to wade into so political a thicket at a time when doing so would clearly change the president’s bargaining leverage on the shutdown."