Just hours before the administration was expected to announce the fate of the Deferred Action for Childhood Arrivals (DACA) policy, Sen. Tom Cotton (R-AR) appeared on Hugh Hewitt’s conservative radio show, giving a brief preview of the sort of rhetoric the country should expect from President Trump and Attorney General Jeff Sessions moving forward.
“Okay, just checking. Senator, will you agree with me to stipulate to get this started, DACA is un-constitutional, and but for the President’s six month action, which adds a ripeness element, the state attorneys general who were about to challenge it would have been successful, in my opinion, and that the President did a favor to every DACA kid by giving a ripeness argument to every court to delay ruling it un-constitutional?” asked Hewitt.
“Hugh, those points are almost undisuputable,” Cotton replied. “President Obama created this mess and it has landed in President Trump’s lap and our lap and the Congress’ lap. The reason we know it’s unlawful is President Obama himself said it was unlawful in 2010 and 2011 when he was asked to take these steps and did not. But he did so in 2012 in the middle of his reelection. I don’t know of any capable and forthright lawyer who argues that the administration can defend this proposition in court.”
This argument is belied by a Supreme Court decision in June 2016 on DAPA, a program which would have expanded the DACA program, and was found valid by four of the eight Supreme Court Justices on the court at the time. The fifth seat remained vacant because the Senate refused to even consider the nomination of a Supreme Court Justice following Antonin Scalia’s death in February 2016.
DACA, however, is not currently being challenged in court. Republican attorneys general from nine states (Texas, Alabama, Arkansas, Idaho, Kansas, Louisiana, Nebraska, Tennessee, and West Virginia) threatened to sue and force Trump to stop granting deportation relief and work permits to DACA recipients, but it remains to be seen whether they will actually take their cases to a judge.
Cotton also told Hewitt he is “pretty optimistic” he and other Republicans in Congress can get an immigration bill combining DACA and portions of the racist, pro-European Reforming American Immigration for a Strong Economy Act (RAISE) to the president’s desk within the six-month window. Pairing a congressional repair of DACA with anti-immigration policies seems to be the way most Republicans are leaning and could likely be a model for what the Trump administration pushes as well.
ABC on Tuesday published the details of the administration’s forthcoming DACA policy, which includes a halt of new applications and a short window of time in which current recipients, whose permits expire between now and March 5, are allowed to renew their status. All others will lose legal status as early as March 6.
— Gideon Resnick (@GideonResnick) September 5, 2017