The Trump administration said Tuesday it would ask the Supreme Court to decide the fate of so-called Dreamers, but leave the immigration program in place until then — a move that should provide more time for Congress and the White House to negotiate a permanent fix.
The divisive issue has been at the center of talks between Democrats and Republicans to avert a government shutdown this Friday.
The Justice Department said it will ask the high court to overturn a federal judge’s ruling that blocks President Trump from ending Deferred Action for Childhood Arrivals, an Obama-era program that now offers protection from deportation for about 700,000 people who were brought to the U.S. illegally as children.
But a Supreme Court ruling could easily take months, and the Justice Department — in an unusual move — said it does not plan to ask the court to put the judge’s ruling on hold.
That means that DACA holders for now can apply to renew their protections, which were due to begin expiring on March 5.
“Until further notice … the DACA policy will be operated on the terms in place before it was rescinded” by Trump, a spokesperson for U.S. Citizenship and Immigration Services said Tuesday. “We are still accepting applications.”
Last week, a bipartisan group of senators said it was making progress on a deal that would have protected the Dreamers while providing some funds for border security and making some changes to the system of granting visas.
But Trump upended those negotiations by referring to Haiti and some African nations as “shithole” countries during a White House meeting on Thursday, enraging Democrats and sending both sides back to their war rooms. Democrats have threatened to pull their support from a temporary government funding bill if it does not include relief for DACA recipients.
As hundreds of Dreamers and their advocates — many in now familiar orange winter caps — flooded lawmakers’ offices Tuesday on Capitol Hill, Republicans continued work on another stopgap spending measure that would fund federal operations for four more weeks, through mid-February.
It would include a mix of provisions to attract some votes that would probably push away others. One is a reauthorization of the Children’s Health Insurance Program for six years, which is important to Democrats. Others include a two-year repeal of Affordable Care Act taxes on medical device makers and a tax on employees’ high-priced health benefits, the so-called Cadillac tax, that some Democrats also want to end. The GOP measure does not include disaster aid, which is important to members of both parties, but has stalled in the Senate.
“We think we’ll avoid a shutdown,” White House legislative director Marc Short told reporters after a meeting on Capitol Hill. But an immigration deal appeared unlikely by Friday’s deadline, particularly in the House, where Republicans are considering a bill that would contain no deportation protections. Democrats, meanwhile, are pushing for a path to citizenship for Dreamers.
That will put pressure on House Speaker Paul D. Ryan (R-Wis.) to again muster enough votes from his majority to pass a bill without support from Democrats. Though many conservative Republicans tend to vote against spending measures, Ryan has successfully kept his members in line for the last two spending bills.
But in the Senate, Republicans will probably need a dozen or so Democratic votes to avoid a filibuster. With the DACA pressure lifted somewhat by the temporary restarting of the program, some moderate Democrats in pro-Trump states may vote to avoid a shutdown. But Democrats also are facing intense pressure from immigration advocates to block the bill and stand up for Dreamers.
As the controversy over DACA and Trump’s comment continued to consume Capitol Hill, one leading Republican on immigration issues said there was still a chance to salvage a deal. Sen. Lindsey Graham (R-S.C.) called on Trump to abandon his harsh rhetoric and reach out to Democrats for a compromise.
“This has turned into an ‘s-show,’ and we need to get back to being a great country,” Graham said Tuesday during a Senate Judiciary Committee hearing.
He said Trump needed to return to his mood and language of Jan. 9, when the president said he wanted a bipartisan deal, based on “love,” that would protect the DACA recipients.
“I don’t know where that guy went. I want him back,” Graham said.
The White House initially did not dispute that Trump made the remark about “shithole” countries, but the president returned to combative form over the weekend, tweeting attacks on his critics.
Faced with conflicting accounts about what Trump said from senators in the meeting, Democrats on Tuesday pressed Homeland Security Secretary Kirstjen Nielsen, who also attended, for her version. She said she did not recall Trump using the word.
“I did not hear that word used, no, sir,” Nielsen said, responding to a question from Sen. Patrick J. Leahy (D-Vt.). She didn’t specify what Trump did say, acknowledging only that he and others were using “tough language.”
She also said she didn’t recall Trump saying, “I want more Europeans,” including immigrants from Norway.
“Norway is a predominantly white country, isn't it?" Leahy asked.
"I actually do not know that, sir, but I imagine that’s the case,” Nielsen said.
At the hearing. Sen. Cory Booker (D-N.J.) heatedly condemned Nielsen as “complicit” for failing to object to Trump’s insults.
“You’re under oath,” he told Nielsen. “You and others in that room that suddenly cannot remember? ... Your silence and your amnesia is complicity.
“When the commander in chief speaks or refuses to speak, those words don’t dissipate like mist in the air. They fester. They become poison. They give licenses to bigotry and hate in our country.”
Nielsen told the senator she shares his passion against white supremacists and insisted the department is going after those groups. “It can’t be tolerated in the United States,” she said. Nielsen also said she hopes a DACA deal can be found.
“I do feel the urgency,” she said. “I think we owe it to them and we owe it to the American people and to our ideals to find a solution.”
President Obama created the DACA program by executive order in 2012, allowing the Dreamers to apply for deferral from deportation and permission to work and attend school. But conservatives said Obama overstepped his power, and Trump last September moved to end the protection by March, kicking the sensitive issue to Congress for a solution.
Last week, U.S. District Judge William Alsup in San Francisco issued a nationwide order blocking Trump from ending the program. Atty. Gen. Jeff Sessions on Tuesday announced that the administration would appeal to the 9th Circuit Court of Appeals, based in San Francisco, to overturn Alsup’s ruling, but simultaneously would take the rare step of going directly to the Supreme Court.
“It defies both law and common sense for DACA … to somehow be mandated nationwide by a single district court in San Francisco,” Sessions said in a statement.
In neither appeal will the department seek an emergency stay of Alsup’s ruling, officials said. That’s in contrast to the administration’s legal strategy to uphold Trump’s disputed travel ban, when the department sought to immediately overturn lower court rulings that had blocked implementation of the ban.
While Sessions said going directly to the Supreme Court means the issue may “be resolved quickly,” it would take many months and possibly a full year for the justices to rule, if they follow their normal schedule.
If the justices voted in February or March to hear the case, it would most likely be scheduled for argument in the fall, and a written ruling would probably follow in a few months.
By contrast, if the administration filed an emergency appeal asking the court to block or stay Alsup’s ruling, the justices would probably hand down a ruling within a few days.
“It’s a very curious decision,” said Karen Tumlin, legal director for the National Immigration Law Center in Los Angeles. “It is highly unusual for the government to leap-frog the Court of Appeals. But they didn’t say anything about seeking a stay. So this will have no practical impact.”