If President Donald Trump and the Republican leadership were a married couple, we would refer to August as “The Estrangement.”
After months of bashing House Speaker Paul Ryan, Senate Majority Leader Mitch McConnell and “the Republicans” on Twitter, things got so bad between Trump and McConnell last month that they went for weeks without talking. On a phone call just before things got really bad, Trump was reportedly yammering to McConnell when the majority leader fell so silent, the president had to ask, “Are you there, Mitch?”
So it’s not a surprise that when the president previewed his plans to rescind protections under the Deferred Action for Childhood Arrivals program for the undocumented immigrants who were brought here as children, he would lay the responsibility to fix the problem at the feet of Congress.
“Congress, get ready to do your job — DACA!” he tweeted on Tuesday morning.
Congress, get ready to do your job - DACA!— Donald J. Trump (@realDonaldTrump) September 5, 2017
The real surprise came as Attorney General Jeff Sessions made the announcement rescinding DACA, when Sessions made one of the strongest arguments in memory for congressional limits to a president’s authority — any president’s authority.
In his statement from the Justice Department, Sessions called President Barack Obama’s 2012 decision to protect the so-called Dreamers from deportation “an unconstitutional exercise of authority” by the president, since Congress had never passed a law to grant those protections before.
“The executive branch, through DACA, deliberately sought to achieve what the legislative branch specifically refused to authorize on multiple occasions,” Sessions said.
He also read earlier testimony from law professor Jonathan Turley, who said that President Obama was simply nullifying a part of a law he disagreed with.
“If a president can claim sweeping discretion to suspend key federal laws,” Sessions quoted from Turley, “the entire legislative process becomes little more than a pretense.”
The attorney general concluded by saying that by ending DACA, the Trump administration is “ending the previous disrespect for the legislative process.”
Is the president really just standing up for Congress’ right to decide which groups of people can come and go from the country? That certainly wasn’t his position earlier this year when he announced his “Muslim ban” to restrict the travel into the United States by anyone from a list of seven, then six, Muslim-majority countries.
It’s also hard to believe that Trump wanted to defer to Congress’ will when he signed an executive order authorizing the construction of a border wall between the U.S. and Mexico or on the array of controversial topics that the president has tackled, but Congress has not. Those include Trump’s executive order “to begin to ease the burdens of Obamacare,” which Congress put in place six years earlier and never rescinded.
I think we all know the president has reasons for ending DACA that have nothing to do with Congress’ authority over him and his administration. For one thing, he promised his base during the campaign that he would get rid of DACA and they are expecting him to live up to that promise.
Turning up the heat
Putting the decision on Congress’ plate also has the benefit of putting Ryan and McConnell on the hot seat. Forcing them to take action on DACA or lose its protections can make the GOP leaders uncomfortable in ways a mean tweet never could. First, Congress already has a to-do list weighing them down that will last well past the six months Trump is leaving until he says he’ll end DACA.
Beyond the September crush of spending bills and government shutdowns, Trump also wants tax reform done. Hurricane Harvey aid will need to be approved, likely several times, and health insurance markets have to be stabilized. Because 2018 is also an election year, anything that is going to get done in Congress should be done before the spring, members get bogged down in primaries for the midterm elections. To add DACA on top of all of that for his own party’s leadership is a recipe for disaster.
The president could even imperil Republicans’ majorities in the House and Senate by sunsetting DACA in the spring of 2018, since some of their most vulnerable incumbents, including Sen. Dean Heller of Nevada and Sen. Jeff Flake of Arizona, are up for re-election in states with large Latino populations, where they are both certain to face primary challenges from the right.
Other vulnerable House Republicans from Texas and California face the same challenge of voting on DACA before facing primary voters, and then taking that same vote to defend in a general election.
That squeeze from the right and the left is one of the reasons passing DACA through Congress has been so difficult up to this point. That the president is forcing the issue on Republican leaders now only makes the blow from their own president more sharp.
But Ryan and McConnell should take Sessions’ words and apply them literally and liberally. This White House has laid out the argument for why Congress should act on DACA, but also on any number of issues in which the president has signed executive orders when Congress should act instead.
On Tuesday, at least two senators took Trump and Sessions at their word and both said they hope their DACA bill will be taken up in September. Graham said he agrees with the White House that it is Congress’ job to handle, explaining that, in a way, the president may be doing the country “a favor” by insisting on constitutional order, even if it is for his own reasons. “This may be what we need in Congress to get our act together — real people,” Graham said. “We’re going to take care of these kids.”
And despite his tweets that his goal is to take care of American citizens with this DACA announcement, the president later in the day said he has “a lot of love” for the Dreamers caught in the legal unknown that his decision thrusts them into.
“Hopefully, members of Congress are going to be able to do something,” Trump said. “We have to be able to do something and really, I think it’s going to work out very well.”
The president, who has been so fond of executive orders up to this point to do what he believes Congress can’t or won’t, is finally saying that it’s Congress’ turn to act. It’s also Congress’ right and their responsibility.
Are you there, Mitch?
Roll Call columnist Patricia Murphy covers national politics for The Daily Beast. Previously, she was the Capitol Hill bureau chief for Politics Daily and founder and editor of Citizen Jane Politics. Follow her on Twitter @1PatriciaMurphy.