By declining to immediately consider a case about the Deferred Action for Childhood Arrivals program Monday, the Supreme Court handed Washington both a blessing and a curse: time.
Congress and the White House has already been floundering to come up with any compromise on DACA, the program that protected young undocumented immigrants who came to the US as children which President Donald Trump has decided to terminate.
On Monday, the Supreme Court gave them more reason to wait.
The court declined the administration’s request for them to take a very rare step of bypassing the appellate courts to hear a challenge to the President’s rescission of DACA. In doing so, the court allowed to stand federal judges’ rulings that the Trump administration must resume renewals of DACA. That is now likely to remain in place for months if not longer given court schedules.
That decision effectively killed any sense of an impending March 5 deadline for action – the date Trump had originally conceived as a deadline for the program to begin expiring.
That gives Congress and the White House breathing room before any potential deportations of the sympathetic population might begin, which could remove the one thing that spurs legislation in Congress the best – deadlines.
“We don’t do well when we have more time,” said Republican Sen. John Cornyn. “We need a deadline and we need to act. … I think it would be foolish for us to assume that the courts are going to save us from having to make a decision.”
After the Senate failed earlier this month to advance a single bipartisan proposal to pass a bipartisan bill combining DACA with border security funds, and with the House struggling to find votes for any type of bill Republicans will back, the lack of pressure leaves DACA in limbo indefinitely.
The calculus for lawmakers has long been that the other side will feel more willing to compromise in negotiations as the threat of looming deportations neared. Now, both sides were urging action, but without a clear sense of pressure.
Democrats especially sought to handle the ruling carefully, hailing it as a victory but not permanent.
“Congress should have acted last year,” said Vermont Sen. Pat Leahy. “It takes some pressure off but we still have to act.”
“I know that we need to keep working,” echoed Colorado Sen. Michael Bennet.
Some, though, hoped that more time could give both sides room to regroup after the failure on the Senate floor.
“It could actually help a little bit by giving us a little more time … cool off a little bit,” said South Carolina Republican Sen. Lindsey Graham, who urged Trump to engage and work with Congress to find a deal.
Advocates said in a call with reporters on Monday that they’re still planning a day of action in Washington on March 5, expecting more than 1,000 people to come in, even though the date has no actual significance other than symbolism.
In the meantime, discussion of possibly using a government funding package Congress must write by March 23 as leverage is already circulating.
“My fear is that we’re going to wind up punting, and the omnibus will basically extend DACA … with some border security money, sort of punt the issue for a couple of years,” Graham said.
“I don’t know what the Democrats’ play will be and how willing they’ll be to hold out,” said Arizona Republican Jeff Flake, who has worked with Graham and Democrats to try to pass a DACA fix. “We’ll see.”