Trump’s Next Move on Immigration?

WASHINGTON — Two back-to-back court developments this week indicate a possible road map for President Donald Trump through the minefield of legal resistance he has faced as judges across the country have blocked much of his hard-line immigration agenda.

On Tuesday, a federal judge ruled in favor of an Obama-era immigration program but offered Trump the chance for a do-over, giving the president 90 days to provide a stronger legal justification to shut down the program, known as Deferred Action for Childhood Arrivals, which protects young immigrants from deportation.

On Wednesday, in a separate case involving Trump’s efforts to ban travel from several predominantly Muslim countries, the Supreme Court strongly signaled that the administration’s third try at the issue would work. Questions by the justices indicated that they would most likely back Trump’s revised effort to assert executive authority over the border with “extreme vetting.”

The judiciary has historically given presidents wide latitude to limit immigration, enforce the country’s borders and manage national security. Now, after a year and a half of deep skepticism about Trump’s immigration policies, legal experts said the courts are effectively saying that Trump can earn that kind of latitude if he goes about it the right way.

“The courts are giving the Trump administration guidance on how to exercise their authority,” said Josh Blackman, an associate professor of law at the South Texas College of Law in Houston. On Tuesday’s DACA ruling, Blackman said, “This actually gives Trump a chance to clean it up and issue a new memo that will stand up on appeal.”

Critics of Trump say they still believe the courts will rule against the president and declare his efforts unconstitutional.

Lower courts have blocked most of the president’s three attempts to write a travel ban, saying they violate either the immigration laws barring discrimination in the issuance of visas or the Constitution’s prohibition on religious discrimination. The Supreme Court’s decision in the travel ban case is expected in June.

“Overall, what the administration has been trying to do is contrary to the law,” said Omar Jadwat, director of the Immigrants’ Rights Project at the American Civil Liberties Union, one of the groups that sued to stop the president’s first travel ban. “That’s what the courts should continue to hold.”

Jadwat said he believes the administration will lose in its legal appeals.

Trump’s efforts to restrict immigration and increase deportations of unauthorized immigrants began days after he took office when he signed the first temporary ban on travel from several mostly Muslim countries.

That ban was imposed with no notice and little discussion among federal agencies. A flurry of court rulings blocking the ban led Trump to abandon it in favor of a second version, which was also blocked by courts.

It wasn’t until the president’s third attempt that he found some legal success. While lower-court judges again sought to block the restrictions, the Supreme Court let the ban go into effect while it considered the case. And on Wednesday, the justices appeared inclined to uphold the president’s action, given his powers over immigration and national security, and to discount his campaign promises to impose a “Muslim ban.”

The president has also been fighting a legal battle over his decision to end the DACA program, which President Barack Obama put in place in 2012. The program allows young immigrants who were brought illegally to the United States as children to live and work without the fear of deportation.

About 700,000 immigrants signed up for the program, which requires them to renew every two years.

As a candidate and as president, Trump said DACA was an unconstitutional abuse of presidential power and vowed to end it. In September, he followed through, saying he would end the program by March and was acting on behalf of “the millions of Americans victimized by this unfair system.”

Courts intervened to save the program much the same way judges had blocked Trump’s actions on the travel ban. Within weeks of the March deadline, judges ordered the president to continue renewing participation in the program for those who had already enrolled.

On Tuesday, Judge John D. Bates of U.S. District Court for the District of Columbia went one step further, saying that government officials must also allow new applicants to sign up for protections offered by DACA.

But Bates, who was appointed by President George W. Bush, said that he had ruled against the Trump administration because it had not offered a rationale for why the program should be ended. The decision to rescind DACA, he wrote in his decision, “was predicated primarily on its legal judgment that the program was unlawful.” He added, “That legal judgment was virtually unexplained, however, and so it cannot support the agency’s decision.”

The judge was explicit in laying out a way that Trump could move forward, and all but urged the secretary of homeland security to submit within 90 days a more complete explanation of the administration’s rationale. If the administration fails to do so, the judge said it must fully restart the program.

If the administration does submit a rationale acceptable to the judge, it’s possible that at least one court would allow it to end DACA this summer. That could come soon after a favorable ruling on the travel ban case at the end of June.

“Is it conceivable that this president could figure out harsh and unfair things to do that are legal within the letter of the law? Sure," Jadwat said. But he added, “It’s not actually that easy to go back and do it over.”

Sarah Huckabee Sanders, the White House press secretary, on Wednesday called Bates’ ruling “extraordinarily broad and wrong on the law” and said it would serve as an incentive to attract more unauthorized immigration to the United States.

“This ruling is good news for smuggling organizations and criminal networks, and horrible news for our national security,” Sanders told reporters.