President Donald Trump speaks from the Oval Office as he gives a prime-time address about border security on January 8, 2019.(AP Photo / dpa, Carlos Barria)
Donald Trump.(Reuters / Carlos Barria)
Donald Trump’s “major announcement” to end the government shutdown is an offer based on his belief that the American people are stupid and the media are dupes. In exchange for releasing the 800,000 federal workers Trump currently holds hostage, the president is offering to do something the courts will say he has to do anyway.
My 6-year-old tries this trick on me all of the time: “Daddy, I’ll take a bath if you give me a cookie.” No, my smelly progeny, you don’t get a cookie for doing something you have to do anyway. What my 6-year-old doesn’t appreciate is that I’m legally allowed to hose his narrow ass down, with or without his consent.
On paper, Trump is offering to extend the Deferred Action for Childhood Arrivals program (DACA)—by signing the Bridge Act (more on that later)—and to rescind his executive order revoking Temporary Protected Status (TPS) to immigrants from “shithole countries” (his words) who are here because their homelands are in turmoil. If you are an American who doesn’t pay a lot of attention to the legal system, this probably sounds like a fair compromise to end the government stalemate.
If you do pay attention to courts, you know that the Supreme Court has already taken DACA extension out of Trump’s hands. For now.
Remember, DACA recipients were the first people that Trump tried to take hostage for his wall, and Democrats were willing to give Trump $25 billion to free them. But… his racist base didn’t like “amnesty” for children who were brought to this country through no fault of their own, and Trump turned down the deal. Instead, Trump decided to let the courts weigh in on his executive order to end DACA.
Since then, lower courts have ruled that DACA cannot be rescinded by executive fiat in the way Trump has tried. And on Friday, the Supreme Court did not agree to hear the Trump administration’s challenge to those lower court rulings. Friday was almost certainly the last day this term that the Supreme Court would agree to hear new cases. What that means, at a minimum, is that the lower-court rulings preserving DACA will remain in place for another year. Nobody needs Trump to agree to that. Trump’s offer to extend the thing that’s already been functionally extended is irrelevant.
The Supreme Court might decide to review DACA next term, but Trump’s offer here is not a permanent solution to the DACA issue. He’s not offering to sign off on the Dream Act, which would guarantee protections for these children. He’s offering to support the Bridge Act, which is, essentially, just an agreement to leave DACA in place for three years. It’s not a permanent solution, and it reserves Trump’s prerogative to take these people hostage again, if he so chooses.
As for TPS, it does not enjoy the same legal holding pattern that DACA currently does, but there’s a good chance it will in the near future.
Trump is offering to allow TPS status to continue for three years, just like DACA.
But, a week ago, overlooked in the coverage of the government shutdown, a trial took place challenging Trump’s revocation of TPS to Haitian immigrants. During that trial, lawyers defending TPS recipients made a compelling case that the government violated the law when revoking the status, and that it revoked the status for improper reasons.
The Miami Herald has a good top-line summary:
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Onwards,
Katrina vanden Heuvel
Editorial Director and Publisher, The Nation
[The trial] concluded…with internal government emails showing that the administration was so determined to end the program that it ignored its own government’s research flagging health and safety concerns.
A decision in the case isn’t expected until March, and it’s always dangerous to predict how a judge will rule in a trial court. But the government’s position is not great. Remember, Trump has used vulgar language to describe his contempt for these people and revoked their status in the same kind of legally impulsive and shoddy manner that he tried to use to end DACA. Remember also that a trial judge just issued a 277-page takedown of Trump’s attempt to add a citizenship question to the Census. There might already be a solution to Trump’s bigoted attempts to revoke TPS, if we just wait for the trial court to tell us its ruling.
So, while the first branch of government is trying to manage a temper tantrum emanating from the second branch of government, don’t forget that the third branch of government continues to constrain the president, and has every constitutional authority to do so.
Technically, the Supreme Court can review DACA whenever it wants, and we don’t know how the TPS trial will shake out, but Trump’s leverage on these issues is contingent on the courts’ rubber-stamping both of his policies. Not only is that unlikely, it’s unnecessary for Democrats to trade away the store until the court system has weighed in.
Donald Trump, the president, trying to deal away the shutdown by offering mercy on DACA and TPS is like Fred Trump, the slumlord, trying to sell you a house that is infested with termites. It might have some curb appeal, but the foundation is being eaten away from the inside out, and Trump knows it.
I don’t expect Nancy Pelosi or Chuck Schumer to fall for it. But I do expect a lot of people who don’t know how courts work to parrot Trump’s contention that he’s offering some kind of “deal to end the shutdown.”
Don’t be dumb. Other people being dumb is the only way Trump has ever “won” a deal.
Elie MystalTwitterElie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.