Immigration and Citizenship

Supreme Court Deadlock Proves Fatal to Obama’s Immigration Plan

By Cameron Langford

A 4-4 split by the U.S. Supreme Court on Monday killed the Obama administration’s offer of deportation reprieve to millions of undocumented immigrants.

There are an estimated 5 million to 6 million undocumented immigrants who qualified for deportation relief, but the Fifth Circuit stopped the programs from taking effect, and the Supreme Court deadlock leaves that ruling in place by default.

The stalemate also means President Barack Obama will leave office without making any progress on immigration, which he vowed to do after Congress failed in 2014 to pass comprehensive reform.

Obama’s presidency has been a study in contrasts for the nation’s roughly 11.3 million paperless immigrants. His administration has deported record numbers, while offering ways to legalize the presence of parents of U.S. citizens and some people who were brought to the United States as children.

With no opinion or dissent itself accompanying the court’s deadlock order today, Obama’s next step remains uncertain.

The government could ask U.S. District Judge Andrew Hanen, who enjoined the programs, for a hearing on the merits, but Brianne Gorod, chief counsel of the Constitutional Accountability Center, called that outcome unlikely.

“As a practical matter, Judge Hanen, who has repeatedly demonstrated his hostility to the administration’s immigration initiatives, is not going to provide the government with relief,” Gorod said in a statement.

“Given that a 4-4 ruling will not create binding law for the rest of the country, it’s possible there could be lawsuits filed in other parts of the country, but it’s unclear how courts would view those suits given that the district court imposed a nationwide injunction,” Gorod added. “As a result, a 4-4 decision could produce a tremendous amount of legal confusion.”

Texas and 25 other Republican-controlled states argued in their December 2014 lawsuit that Obama overstepped his authority by issuing an executive order on immigration and that he did not follow the process for new rules.

Although the programs would grant “lawful presence” status to qualifying immigrants, giving them the right to apply for driver’s licenses and federal work permits, the Obama administration emphasized that the programs would not offer amnesty or a pathway to citizenship, a sticking point for hard-line immigration opponents in Congress.

The Department of Homeland Security unveiled Deferred Action for Parents of Americans in November 2014, alongside an expansion of Deferred Action for Childhood Arrivals, a program the agency started in 2012. Respectively, each program is usually abbreviated to DAPA and DACA.

The government has offered the programs as solutions to a fundamental problem in U.S. immigration policy: Homeland Security’s $6 billion immigration enforcement budget is not enough to deport everyone illegally present in the country.

The same day Obama announced DAPA, his administration issued a memo ordering immigration authorities to prioritize deporting serious criminals and new illegal arrivals, a process known as prosecutorial discretion.

Obama emphasized at a White House press conference on Thursday that the Supreme Court stalemate does not affect the 2012 version of DACA, a program for which more than 730,000 young immigrants, so-called Dreamers, have qualified.

The Department of Homeland Security will also continue to prioritize deportation of felons, gangbangers and recent border-crossers, Obama said, keeping the pressure off otherwise law-abiding undocumented immigrants who have lived in the United States for years.

Today’s deadlock vote on Obama’s immigration plan is one several cases to reach such an outcome this term after the death in February of Justice Antonin Scalia.

The Democrats’ presumptive presidential nominee voiced outrage over the latest addition.

“As I have consistently said, I believe that President Obama acted well within his constitutional and legal authority in issuing the DAPA and DACA executive actions,” Hillary Clinton said in a statement. “These are our friends and family members; neighbors and classmates; DREAMers and parents of Americans and lawful permanent residents. They enrich our communities and contribute to our economy every day. We should be doing everything possible under the law to provide them relief from the specter of deportation.”

Mexican immigrants already smarting from the rhetoric of the Republicans’ presumptive presidential candidate, will feel the sting of this deadlock most. Donald Trump launched his campaign with a speech ranting that Mexico sends its rapists and murderers to the United States; he has called for Mexico to pay for a border wall; and he recently said U.S. District Judge Gonzalo Curiel cannot oversee litigation involving Trump University without bias because he’s Mexican.

Clinton voiced sympathy for this group in her statement today, calling the Supreme Court’s decision “a stark reminder of the harm Donald Trump would do to our families, our communities, and our country.”

“Trump has pledged to repeal President Obama’s executive actions on his first day in office,” Clinton said. “He has called Mexican immigrants ‘rapists’ and ‘murderers.’ He has called for creating a deportation force to tear 11 million people away from their families and their homes.”

Clinton said DAPA and DACA are valid on the merits, and that she will uphold them as president.

The former secretary of state capped off her remarks with a vow to “introduce comprehensive immigration reform with a path to citizenship within [her] first 100 days.”

Today’s deadlock tracks an April 18 hearing in which the justices seemed ideologically at odds.

Chief Justice John Roberts and Justice Samuel Alito said at the hearing they were that concerned language in the president’s executive order would make recipients of Obama’s program – Deferred Action for Parents of Americans – lawfully present during the period of deferred deportation.

The justices voiced puzzlement at how a person can be simultaneously lawfully present and in violation of U.S. immigration law.

The court’s typical swing vote, Justice Anthony Kennedy, also had doubts at the hearing about whether Obama had violated the U.S. Constitution by acting without Congress.

“What we’re doing is defining the limits of discretion. And it seems to me that that is a legislative, not an executive act,” Kennedy said.

Justices Ruth Bader Ginsburg and Sonia Sotomayor, who are seen as part of the court’s liberal bloc, seemed sympathetic to Obama’s policies, seizing on U.S. Solicitor General Donald Verrilli’s point that the United States has the resources to deport only 400,000 immigrants per year.

Since Scalia was expected to vote against the programs, University of California-Davis law professor Gabriel “Jack” Chin noted that the justice’s absence likely did affect today’s outcome.

The tie creates the same effect as if Scalia cast the deciding vote in a 5-4 defeat of Obama’s policies.

Clinton added her voice to the chorus of those exasperated with GOP obstructionism in Washington.

“In addition to throwing millions of families across our country into a state of uncertainty, this decision reminds us how much damage Senate Republicans are doing by refusing to consider President Obama’s nominee to fill the vacancy on the Supreme Court,” Clinton said. “Our families and our country need and deserve a full bench, and Senate Republicans need to stop playing political games with our democracy and give Judge Merrick Garland a fair hearing and vote.”

Obama nominated Garland to replace Scalia back in March, but the D.C. Circuit chief judge is approaching 100 days without a confirmation hearing.

Leading Senate Republicans have vowed to deny Garland a hearing under the principle that an election year is too chaotic for such sensitive work.

In court filings with the Supreme Court, the government said the programs are built on the idea of “deferred action” that presidents have used in more than 20 immigration policies since 1960.

Texas argued in its Supreme Court brief that Obama’s programs illegally change the legal status of the millions of immigrants who could qualify.

“DAPA’s granting of lawful presence pushes the concept of deferred action far beyond what this court has recognized,” Texas Solicitor General Scott Keller wrote, going on to cite precedent from the Supreme Court’s 1999 ruling in Reno v. American-Arab Anti-Discrimination.

“‘[D]eferred action’ is merely the ‘discretion to abandon’ the ‘initiation or prosecution of various stages in the deportation process,'” Keller said. “But a decision not to initiate enforcement action cannot transform unlawful conduct into lawful conduct.”

Judge Hanen’s injunction on Feb. 16, 2015, blocked U.S. Citizenship and Immigration Services from taking applications for expanded DACA and DAPA in February and May 2015 as scheduled.

The Fifth Circuit twice upheld the injunctions, agreeing with Texas that it has standing because it will bear the cost of issuing driver’s licenses to qualifying immigrants and that Obama violated the Administrative Procedure Act by not following its notice-and-comment process for new rules.

Obama said he has faith that Congress will eventually pass immigration reform and provide a path to citizenship for undocumented immigrants who want to “get right with the law.”

“I promise you this, though — sooner or later, immigration reform will get done,” Obama said. “Congress is not going to be able to ignore America forever. It’s not a matter of if, it’s a matter of when. And I can say that with confidence because we’ve seen our history. We get these spasms of politics around immigration and fear-mongering, and then our traditions and our history and our better impulses kick in. That’s how we all ended up here. Because I guarantee you, at some point, every one of us has somebody in our background who people didn’t want coming here, and yet here we are.”

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