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The Supreme Court isn’t giving Trump leverage on a shutdown DACA deal

The court hasn’t officially agreed to hear the lawsuit over DACA — which means the program will probably remain on life support for several more months.

The Supreme Court still hasn’t announced whether it will take up a lawsuit over President Donald Trump’s effort to end the Deferred Action for Childhood Arrivals (DACA) program.

And that’s big news.

It means the court probably won’t take the case until fall — and may not rule before 2020. In the meantime, the 700,000 or so unauthorized immigrants who came to the US as children and are currently protected from deportation will continue to be allowed to renew their protections and work permits.

The Supreme Court hasn’t yet officially decided not to take up the DACA case during the current term, which ends in June. Or at least, they haven’t publicly said that they’re not taking it up. But because they haven’t yet, it looks likely that the court will wait until the next term starts in October 2019.

Until they’ve heard the case and issued a ruling — which could come as late as June 2020 — DACA’s protections will remain in effect.

The specter of a forthcoming Supreme Court ruling on DACA was, in theory, supposed to give Trump the upper hand in his on-again, off-again negotiations with Democrats over immigration (which have now turned into a fight over the month-long partial government shutdown). With Supreme Court action apparently delayed, Trump has more of an incentive to deal — and Democrats have less.

Why the Supreme Court’s inaction is being seen as a decision

The official status of the DACA lawsuit is exactly the same as it was a month ago. A judge in the Northern District of California ruled against the Trump administration and ordered them to allow current DACA recipients to renew their protections; the Ninth Circuit Court of Appeals upheld the injunction; and the Supreme Court is currently considering whether or not it’s going to take up the case.

It is very likely the court will decide to take it up. For one thing, there are other DACA suits pending in other parts of the country (though the Trump administration hasn’t actually won any of them). The current conservative court is also a lot more deferential to Trump on immigration than the Ninth Circuit; the assumption is that the Court will not only consider the case, but rule in the administration’s favor and allow Trump to shut the door on DACA again.

But so far, the justices have had two chances to officially announce they’re hearing the case. And they haven’t yet.

It takes several months to schedule, brief, hear, and rule on a case. And the Supreme Court is supposed to issue a ruling in cases the same term it hears oral arguments — so any case argued between October 2018 and June of 2019 should have a decision by June. The Court, traditionally, doesn’t try to squeeze in cases that it agrees to hear late in the term. Generally, after mid-January, if a court agrees to hear a case it will schedule it for the next term — starting in October.

In theory, nothing’s stopping the Supreme Court from announcing in February (after the justices next meet to decide which cases to take) that it’s hearing the DACA case after all. But it would be a massive time crunch. If they wanted to take the case to rule on by June, the thinking is, they would have taken it up already. So the Supreme Court’s silence is being taken as a tacit decision to wait until next term.

Trump was counting on the DACA case as leverage. Now Democrats have less incentive to deal.

Before last week, Trump and Vice President Mike Pence had both made it clear that they were not going to discuss legalizing current DACA recipients before the Supreme Court ruled on the lawsuit over the legality of Trump’s decision to end the program administratively. The implication was that they were confident the Supreme Court would rule in their favor and allow them to start pushing DACA recipients out of deportation protection — increasing pressure on Democrats to compromise on immigration in order to secure some kind of protection for DREAMers again.

But if the White House was expecting to be able to pressure Democrats to accept a more conservative immigration deal in June, because they were worried about DREAMers’ protections expiring imminently, the Supreme Court’s inaction appears to have them reconsidering.

On Saturday — the day after the Supreme Court’s unofficial deadline for announcing new cases for the term — Trump came forward with an offer to Democrats to sign a bill extending DACA recipients’ current protections for three more years (and doing something similar for some immigrants with Temporary Protected Status, another program Trump is trying to end but is held up in court).

The problem for the White House is that Democrats also know what the Supreme Court’s calendar means for DACA recipients — and therefore for the urgency of a deal.

They know that if Congress takes no action, current DACA recipients will remain protected from deportation and able to work for several more months at least. So there’s less incentive for them to agree to any compromise, especially one that offers to extend the same protections DACA recipients have now for just a few years, instead of offering them permanent legal status or access to citizenship.

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