Jeff Sessions walked into the White House two weeks ago with a blunt message for his boss: The Obama-era program that keeps hundreds of thousands of people safe from deportation is unconstitutional. And setting aside any sentimentality, the attorney general told the president he would not defend the program in court.
That was when Donald Trump decided he had no choice.
“Once Sessions told Trump he would not defend DACA in court, he left Trump without any other legal options,” said a source familiar with the conversation.
Trump struggled for months over what to do about the people brought to America as children. He wavered between disparaging as “amnesty” the program known as DACA that protects them from deportation to then professing that he loves the Dreamers. He promised for months to show heart in his decision, but he faced the wrath of supporters who expected him to swiftly send people here illegally out of the country.
On Tuesday, as Trump’s Justice Department announced the decision and urged Congress to do something if it wanted to keep the Dreamers in the only country many of them have ever known, the responses from the left and right were predictable. But inside the White House, the fault lines and the calendar had shifted for weeks.
The Deferred Action for Childhood Arrivals (DACA) program, an Obama-era initiative that shielded young undocumented immigrants from deportation, will end, Attorney General Jeff Sessions announced Tuesday, Sept. 5, 2017. There will be a “wind down period” to give Congress time to take action if it chooses to do so, says Sessions.C-SPAN
When Sessions delivered what turned out to be the decisive message, time had nearly run out. It was less than two weeks until a looming deadline imposed by 10 states that threatened to sue the federal government if Trump did not end the Deferred Action for Childhood Arrivals program.
But the president was still conflicted, and so was his new chief of staff, John Kelly, who had personally supported DACA.
It was last Thursday, and Sessions and one of his former aides, Stephen Miller, who now serves as Trump’s senior policy adviser, tried to get into the Oval Office to see Trump and talk again about their opposition to protections for Dreamers, according to a person familiar about the situation. They saw the president wavering and wanted to remind him of the legal argument and the stakes.
Kelly stopped them.
Kelly, the former secretary of homeland security, had a solution in mind aimed at allowing Trump to fulfill a campaign promise while easing the president’s clear misgivings about ending a program geared toward children — many of whom had no idea they were being brought to the country illegally. Delay the program’s end by six months, Kelly told Trump.
There was a practical benefit of this approach too; it would give Congress time to devise a legislative fix to protect nearly 800,000 Dreamers.
“General Kelly either wants a delay on the decision or to keep DACA, and is very frustrated by the attorney general and his former staffer Stephen Miller’s efforts to pursue their own agenda, given the president told his staff in the past he wants to keep DACA in place,” according to a person familiar with the situation.
Kelly used the weekend to call congressional leaders and lock in support. As details leaked, the administration’s decision was now set.
Once Sessions told Trump he would not defend DACA in court, he left Trump without any other legal options.
Source familiar with conversation
Trump made cracking down on illegal immigration the signature issue of his campaign. He promised to build a border wall and boost deportations, and he pledged to eliminate DACA on his first day in office.
Once elected, his aides got to work. Members of the Domestic Policy Council and DHS met with representatives for groups on both sides of DACA, including the Center for Immigration Studies, Numbers USA, Federation for American Immigration Reform and Fwd.us, which were mobilizing supporters to send letters and emails, call the White House and organize protests, according to multiple people familiar with the meetings.
FAIR was just one of the groups that sent Trump’s team their proposals, including support for ending the program for Dreamers. “Repeal of all Obama administration executive policy decisions that have effectively exempted nearly 90 percent of all immigration law violators from enforcement, including the unconstitutional Deferred Action for Childhood Arrivals (DACA) program,” the document stated.
An executive order was drafted to end the program. Titled “Ending unconstitutional executive amnesties,” transition aides post-dated the order Jan. 23, which was the first Monday after Inauguration Day. But Trump did not sign the order. The widely circulated draft executive order remained just that — a draft.
Yet Trump began surrounding himself with more top aides who supported protections for Dreamers. They include his first and second chiefs of staff, Reince Priebus and Kelly, his daughter, Ivanka Trump, and her husband, Jared Kushner, who both serve as presidential advisers. Even those who have not been as vocal publicly about their stance were thought to agree, such as Vice President Mike Pence, who as a congressman worked on a failed immigration deal that called for citizenship, National Security Adviser H.R. McMaster and Gary Cohn, a Democrat who serves as director of the National Economic Council.
Miller was even ordered not to brief the president on the issue over the months, according to two people familiar with the situation. A former campaign and transition aide, Miller had already briefed Trump many times on Dreamers so his views are not unknown, but the president has a tendency to side with the last person who speaks to him.
“I’m just glad Sessions is there because everybody in the White House other than Stephen Miller is now a liberal Democrat who frankly couldn’t care less about immigration enforcement or legal immigration,” said Mark Krikorian, executive director of the Center for Immigration Studies.
Even Trump’s rhetoric changed on the issue. He maintained his fury about cracking down on immigration but softened his language when referring to Dreamers. “He is a bit more emotional than people realize especially about kids,” Republican consultant Matt Mackowiak said.
Trump stopped calling the program illegal amnesty and instead spoke candidly of his torn feelings, saying what to do about Dreamers was one of his most difficult decisions. He promised to “work something out” for the so-called Dreamers.
“You know, I love these kids,” Trump said at a lengthy news conference in February. “I love kids. I have kids and grandkids. And I find it very, very hard doing what the law says exactly to do. And you know, the law is rough. I’m not talking about new laws. I’m talking the existing law is very rough. It’s very, very rough.”
Through the spring, Trump heard from the warring factions inside and outside the White House.
His supporters insisted the program was unconstitutional. Keep your promise, he was told repeatedly. But others who wanted to keep DACA, including some members of his own party, worried about backlash from business leaders, faith groups and donors if he ended a popular program that protects the most sympathetic segment of the undocumented community. Some saw it as political suicide, possibly throwing a away the increasingly important Latino vote for a generation.
In June, Apple CEO Tim Cook urged Trump to show more compassion on immigration, saying Dreamers on his staff were scared.
Still, Trump did not act. He found himself in the midst of multiple scandals involving Russian meddling in the campaign on his behalf, fired aides and failed proposals. His poll numbers plummeted and Trump retreated to the safety of his base. He began holding rallies where he pulled out old applause lines from the campaign. The biggest applause line often had to do with immigration.
Yet, all the while, his administration continued to process applications and renew DACA work permits to the dismay of immigration hard-liners.
One of the most prominent groups pushing Trump to end DACA, FAIR did not know the administration was still accepting applicants until statistics came out this summer that showed Trump was issuing new work permits at nearly the same pace as Obama. A FAIR spokesman described it as a “betrayal” and said ending DACA took on a new sense of urgency.
Soon, Republicans officials from 10 states threatened to sue the Justice Department if Trump did not end the program, arguing Obama overstepped his executive powers in granting the vast special protections. They issued Trump a Sept. 5 deadline.
Advocates immediately accused the Trump administration of engineering the lawsuit to provide him political cover to the end the program. And Sessions, who as an Alabama senator was a staunch opponent of DACA, praised the states who threatened to sue the administration in a June 30 interview with Fox and Friends.
“I like it that our states and localities are holding the federal government to account, expecting us to do what is our responsibility to the state and locals, and that’s to enforce the law,” Sessions said.
The Trump administration appeared resigned to let the court do the work. On July 12, Kelly, then still DHS secretary, told members of the Congressional Hispanic Caucus that he didn’t expect the administration would defend the program and that the courts would end it.
“I have never left a meeting so emotionally affected than from what I just heard inside,” Rep. Luis Gutierrez, D-Ill., said after the meeting.
But Trump’s supporters didn’t feel that was enough. Why allow the courts to make the decision? This was a chance for Trump to take the lead and look and act presidential.
Trump got the message. Last month, aboard Air Force One en route to Paris, he made it clear the decision was his own.
“It’s a decision that I make and it’s a decision that’s very, very hard to make,” Trump said. “I really understand the situation now. I understand the situation very well. What I’d like to do is a comprehensive immigration plan. But our country and political forces are not ready yet.”
But Trump continued to struggle as the lobbying effort grew. Leon Fresco, who was head of the Department of Justice’s Office of Immigration Litigation during Obama’s tenure, said Trump should have simply asked the Republican state officials for more time.
“Politically, Trump can easily defuse this crisis by tweeting to the governors about having more important things to do right now than challenging DACA,” Fresco said.
In the final days before Tuesday’s announcement, Trump’s team and Republican leaders tried to ensure he wouldn’t stray from the decision they had finally gotten him to make. Conservative senators led by Thom Tillis of North Carolina talked to the White House about legislation that would create an avenue for Trump to end the program while also giving him a way to show Dreamers he was “working on something” with Congress. In the House, Speaker Paul Ryan pledged that lawmakers would also work on a fix.
On Tuesday, when it was time to announce a major policy decision, Trump did not take the stump.
Instead, it was Sessions who took the mic.