President Donald Trump has frequently deployed opinions on Deferred Action for Childhood Arrivals (DACA) as political chips. Dating back to his first presidential campaign and continuing throughout his first term, he has vacillated between “they have to go” and “we’re going to show great heart … I love these kids.“
As the battle over the program implemented by former President Barack Obama in 2012 wages on in the courts, the gamble of playing both sides of the line has become increasingly problematic for the administration and Trump’s reelection campaign.
DACA, which provides a stay of deportation, work permits, and other benefits to immigrants brought to the United States illegally at a young age who pass background checks, was initially implemented due to congressional deadlock on immigration reforms that shows no sign of loosening.
Trump issued an executive order to rescind DACA in September 2017, at the time giving Congress six months to work on a deal. Several legal challenges emerged to shuttering the program, and the Supreme Court will now hear arguments for three consolidated cases on November 12. A decision is not expected until summer 2020, just a few months prior to election day.
Whatever the result, the aftermath could be a headache for Congress and Trump alike.
“This has the potential, either way it goes, to be problematic for Trump,” University of Nevada Las Vegas chair of political science David Damore said. “If he gets his way and he wins, it creates this situation where all these people who are generally well received by the public are now in even greater limbo. If he loses, it could be more problematic for him to some degree as a loss of negotiating power.”
Polls show that the majority of voters favor allowing the roughly 800,000 immigrants who have received DACA to stay in the country. By the time the Supreme Court decides the case, DACA recipients will have been studying and working in the U.S. for more than seven years.
When DACA was rescinded, the administration expressed hope that it would motivate Congress to work out a larger immigration deal that included protections for the young immigrant population along with security measures.
By the end of 2017, with the federal budget in play, it looked like a compromise was in the works and Trump was on board. Congressional Democrats and Republicans had reached agreement on the pillars of a deal, including funding for a border wall, but the White House pulled its support at the last minute.
Even GOP leaders expressed frustration at the White House’s moving target, and the influence of immgration hardliners on the president.
“As long as Stephen Miller is in charge of negotiating immigration, we are going nowhere,” Sen. Lindsey Graham (R-S.C.) told the press after the deal disintegrated. “I’ve talked with the president; his heart is right on this issue. He’s got a good understanding of what will sell. And every time we have a proposal, it is only yanked back by staff members.”
Now that the case has reached the Supreme Court, Trump could be thrown a tricky issue to solve in the lead up to Election Day 2020.
If the justices side with the administration and DACA is rescinded, a clamor to find a solution for the participants is likely. Deporting that many people would be fiscally destructive. According to a Brookings analysis, it would cost roughly $10 billion to deport all of the DACA recipients, while Immigration and Customs Enforcement’s annual budget is $7.5 million.
DACA holders are also paying $2 billion in taxes each year.
More than three quarters of all Americans support a pathway to citizenship for young immigrants brought into the U.S. illegally as children who serve in the military or go to college, according to a recent report on U.S. political opinions across a range of political ideologies. Looking at what the study calls “Devoted Conservatives,” 63% support a pathway to citizenship under those circumstances, and just less than half (48%) said they would back a similar provision specifically for DACA recipients.
Support for maintaining DACA has built in the form of a series of amicus briefs filed to the Supreme Court, including ones from Apple CEO Tim Cook, Starbucks, IBM, Google, Amazon, Harvard, Yale, and more than a dozen other colleges and universities, and a list of prosecutors and law enforcement officers.
In an October 16 press conference, Sen. Dick Durbin (D-Ill.) said “there is a growing bipartisan sentiment that these DACA recipients need protection” and he was hopeful Congress would act at least on an emergency basis if DACA were scuttled. However, he added that a larger deal with the Trump administration was “a long shot.”
“As for the administration trying to bargain with [DACA], they tried that before and it didn’t work very well,” Durbin said, referring to the late 2017 negotiations. “… We thought that we were in a bargaining position with this administration and came forward with the bipartisan bill, a strong bipartisan bill, that the President invited us to offer to renew DACA. And he rejected it and came back with a horrible alternative that had more than 60 senators voting against it, including the Republicans.”
In June, the House of Representatives passed the American Dream and Promise Act which, among other things, would have provided a pathway to citizenship for DACA recipients. Senate Majority Leader Mitch McConnell has refused to take up the bill, spurning any deal that does not provide for border security and deeper immigration reforms.
“The election year calendar could provide some incentive for both sides to reach a compromise,” said Dan Schnur, political communications professor at the University of California, Berkeley, and University of Southern California, who is a former GOP strategist and adviser who worked for Republican Sen. John McCain, among others, and no longer affiliates with a party.
“If the court decision comes in late spring or early summer, and both parties in Congress have some time to gauge the potential impact, Republicans might be much more willing at that point to find a way to soften the blow,” he said. “At the same time, Democrats need to prove that they are able to govern.”
Still, many observers feel it will still be tough to find a compromise in summer 2020 on any issue, much less one that has eluded Congress for more than a decade.
“Impeachment is likely to suck up the oxygen and push immgration to the back of the agenda,” Damore said. “There’s a reason why we got DACA to begin with. It’s because they couldn’t get a DREAM Act through, and the general unwillingness to make a deal by using the call for a comprehensive plan as an excuse for inaction.”
With no solution at hand, the disruption of rescinding DACA may prove thornier than keeping it in place for the administration.
“Public opinion is squarely on the side of the DREAMers, but it’s not the type of issue that will move a large number of voters from one side to another.” Schnur said. “That said it could have a very important impact on the campaign. Democrats won’t gain a lot of new voters because of it, but it could motivate certain groups, particularly low propensity voters, such as young people and voters from minority communities.”
Additionally, suburban Republicans did not turn out at a high rate during the 2018 midterm elections, and issues like DACA could further their distaste.
“Traditional suburban Republicans in these districts might not love Democrats, but they’re not that comfortable with Trump either,” Schnur said. “An issue like this one reminds them why they’re not comfortable with Trump. For some of these old school Bush/McCain Republicans, if they are faced with Trump or someone like Warren or Sanders, they’ll probably just stay home.”
In Nevada, a swing state in the last few presidential elections, the Latino-majority Culinary Union Local 226 is a major political power that drives turnout, and a DACA debacle would support efforts to motivate their members to get to the ballot box.
“It’s absolutely a motivator for Latino voters,” Damore said. “You go back to 2012, and Obama implemented DACA as displeasure with his deporations was building, and he was heading into an election. He switched the conversation quickly at a time when Romney was still holding a more conservative line on immigration.”
While DACA is unlikely to be a pivotal election issue, compared to greater voter concerns such as the economy and health care, it could contribute to a broader Democratic effort to frame Trump as un-democratic and capricious, creating more problems than he solves.
Going into 2020, the administration will also be combatting legal challenges to several other immigration decrees, including new “public charge” guidelines, safe third country agreements with Central American countries, and border wall funding.
By Fall 2020, an array of Trump executive orders will be under the microscope, an uncomfortable position for the GOP, which nearly had a collective embolism over Obama’s executive actions, particularly DACA.
Jeff Sessions, Trump’s former attorney general who announced DACA’s dissolution, said Obama was behaving like an “emperor” after the program was announced, while Sen. Ted Cruz (R-Texas) said he was “lawless.” In 2012, Trump himself Tweeted the query: “Why is @BarackObama constantly issuing executive orders that are major power grabs of authority?”
“[The election] could turn on character,” Damore said. “Democrats could look to make it about the people and less about the policy. If they talk policy then they have to start talking about how they’ll fund Medicare for All and some of these bigger ideas.”
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