Legal experts dispute a claim from some senior Trump administration officials that President Donald Trump lacks the legal authority to extend his own deadline for ending an immigration program that protects nearly 700,00 people from deportation.
Senior White House and Cabinet officials in recent days have sent mixed messages about whether Trump could merely amend a September executive order that gave Congress until March 5 to legalize the Obama-era Deferred Action for Childhood Arrivals program.
There is no consistency in the administration’s stance, with lawmakers and experts saying the various messages only further cloud an already murky legal question.
In one camp are Trump and officials like Press Secretary Sarah Huckabee Sanders signaling the president could merely change that deadline if lawmakers and White House negotiators need more time to strike an immigration deal. Some legal experts argue he could do so through a new executive order.
But in another are immigration hardliners like White House Chief of Staff John Kelly and Homeland Security Secretary Kirstjen Nielsen. They have stated the president lacks the legal authority to alter his own deadline, a stance echoed in conversations with other White House aides.
But some legal experts say the office of the presidency possesses the authority to change a program termination deadline set via an executive order. After all, a president would not be altering an existing law.
“The original deadline was arbitrary and he could set another arbitrary deadline,” said Andrew Rudalevige, a professor at Maine’s Bowdoin College who specializes in studying the presidency.
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“While you could argue the DACA program should have ended immediately — as unlawful — once you set a transition deadline in the first place, there’s no real bar to saying that ‘administrative convenience’ or some such mandates an extension of that deadline,” Rudalevige added.
Another legal source was asked whether the Trump-Sanders camp is on firmer legal ground. She replied: “That’s probably true,” adding a second executive order amending the first one on DACA likely would be sufficient.
Theresa Cardinal Brown, a former senior Department of Homeland Security immigration official in the George W. Bush administration, sees no clear legal hurdle that would prevent any president from amending a program-ending order with a new order.
But she cautions that unanswered legal questions about the DACA program and how Trump chose to go about ending it create a sizeable grey area on extending the deadline.
“It depends on whether or not you think the original program was unconstitutional. And that has not been decided by the courts,” said Brown, now with the Bipartisan Policy Center. “The September order gave a six-month wind-down to give people a period of time to adjust. Now, whether or not he had the authority to extend it that long has never been tested in court.
“So we don’t really know if an extension would be accepted by the legal system,” she said. Further muddying the waters: It is unclear whether a second order would be challenged in court; but issuing a new one could force Justice Department attorneys to alter their arguments about the legality of the September missive, creating “some bit of legal jeopardy in issuing another order.”
Just what Trump and his top aides will decide to do if Congress is unable to come up with an immigration deal that addresses DACA is anyone’s guess.
When the president popped in on a meeting Kelly was having with reporters about a White House immigration plan on the evening of Jan. 24, he signaled he was considering extending the deadline if immigration talks need more time. But he was clear about his stance on whether he has the authority to do so.
“I certainly have the right to that, if I want,” he said.
But that came eight days after Nielsen told the Senate Judiciary Committee just the opposite. Senate Democratic Whip Richard J. Durbin of Illinois asked her if she has concluded Trump lacks the legal power to change the deadline. “Yes,” she replied.
Nielsen’s department, however, struggled to clarify the disconnect between the two camps’ opposite stances.
Acting DHS Press Secretary Tyler Houlton sent Roll Call a lengthy statement when asked to spell out the legal underpinning of Nielsen’s stance. “Given the attorney general’s determination that the previous DACA policy was likely unlawful and unconstitutional, the administration is fully committed to that deadline,” Houlton said.
The statement did not directly address the legal basis, other than to stress the president determined DACA unconstitutional. He also claimed Nielsen had never said Trump lacks the authority to set a new deadline, and then did not respond to a follow-up email when a reporter shared the Durbin exchange from a transcript of the Jan. 16 hearing.
Kelly went to Capitol Hill on Tuesday and reiterated his assessment that he is “not so sure this president has the authority to extend it,” according to the Washington Post. He reportedly noted Obama created the program via executive order, meaning it is not an actual law.
The chief of staff’s assessment, however, is flawed: Presidents lack the authority to just change laws passed by Congress. They can adjust implementation — but not unilaterally order programs etched in law be terminated.
Hours later on Tuesday, Sanders took another stance when asked about a presidential extension: “He certainly has the right to do so.”
On Wednesday, White House aides were unable to provide a clear answer on whether the president has the requisite legal authorities. They also struggled to say definitely if White House officials asked the Justice Department’s Office of Legal Counsel or a similar legal shop within the government to weigh in. (The Justice Department’s public affairs office did not return requests for comment on the matter.)
The best one White House official could do was try to clarify Kelly’s Tuesday remark, but even that clarification appeared at odds with the retired Marine’s stance: “I think what Gen. Kelly was referring to was the president’s determination that the DACA program was not legal.”