By Lomi Kriel

A short-handed U.S. Supreme Court on Thursday reached a 4-4 split on President Barack Obama’s landmark 2014 immigration plan, upholding a lower court’s ruling that blocks the administration from giving temporary work permits to some 4 million immigrants in the country illegally and delaying their deportation.

The tie, the result of conservative appointee Justice Antonin Scalia’s February death in West Texas, is a major defeat for the Obama administration, which had hoped the program would be one of its main legacies.

It does not, however, set a precedent, allowing other parties to challenge the case again when the court has nine justices. A future president could also try a similar initiative. Meanwhile the case goes back to Brownsville  District Judge Andrew Hanen, who imposed the original injunction.

Experts, however, largely agree that Obama’s ambitious program is likely dead unless a new president tries to revive it after the November elections. Hillary Clinton has said she would continue and even expand the plan while Donald Trump vowed to repeal it.

The tie, announced Thursday without an opinion, comes in the midst of a divisive presidential campaign in which immigration has been a defining issue, helping propel Trump to the top of the Republican ticket as its presumptive nominee.

The court itself is embroiled in a political battle to fill Scalia’s seat, and his absence has caused it to reach a tie four times now. Many experts think the justices didn’t want to decide a case with such hugely consequential questions absent a full bench.

In a press briefing, Obama said the tie was “heartbreaking” and emphasized the need to immediately fill the court’s vacancy. He blamed the gridlock on three months of Republicans hot holding hearings for his nomination, Merrick Garland, a chief judge of the U.S. Court of Appeals for the D.C. Circuit. 

“This is in a part a consequence of the Republicans’ failure so far to give a fair hearing for Mr. Merrick Garland,” Obama said. “(This decision) underscores the degree to which the court is unable to function the way it’s supposed to.”

Elizabeth Wydra, president of the Constitutional Accountability Center, a think tank in Washington D.C. that filed a brief in support of Obama’s plan, similarly called it a “dramatic example” of what happens with a short-staffed high court.

“Here we have a case of extreme national importance and the Supreme Court is unable to decide on a ruling one way or another,” she said. “Millions of families will now have to continue with a cloud of uncertainty over their heads.”

Immigrant advocates called the deadlock a “severe blow.”

“(This) will push immigrants with strong family ties to this country even deeper into the shadows,” said Naomi Tsu, deputy legal director for the Southern Poverty Law Center, a national civil rights advocacy group in Alabama.

In a statement, U.S. Rep. Joaquin Castro, D-San Antonio, said the ruling is a “setback,” but not the end of the fight, similarly emphasizing the need to fill the court’s vacancy.

“Cases like U.S. v. Texas are too important to stall due to politics,” he said. “I am confident that this case will come before the Supreme Court again.”

Opponents of the plan called the tie a victory, with Texas Attorney General Ken Paxton, whose office led the challenge of the case, saying it affirms the state’s argument that a president “cannot unilaterally change the law.”

“This is a major setback to President Obama’s attempts to expand executive power, and a victory for those who believe in the separation of powers and the rule of law,” Paxton said in a statement.

The lack of a decision shows that at least half of the justices have concerns about the president’s executive action, said Dan Stein, president of the Federation for American Immigration Reform, a Washington D.C. group supporting reduced immigration.

“This split decision upholds the rule of law and helps preserve the balance of power in the United States,” Stein said in a statement. “It should stop the Obama lawless power grab.”

The plan, announced by Obama in November 2014, would have been one of the most sweeping changes to the country’s immigration laws since President Ronald Reagan legalized 2.7 million immigrants in 1986. It comes after Congress has remained stuck for more than a decade on what to do with the 11 million immigrants here illegally.

The 2014 initiative would have applied to nearly one-third of them, the immigrant parents of American citizens or legal residents who have been here since at least 2010 without committing major crimes. It would also have expanded a similar 2012 program granting provisional work authorization to certain youth who came here illegally as children.

Both are based on a long-standing legal concept called deferred action that allows the government to defer deporting certain immigrants and temporarily permit them to work. It has, however, never been granted to so many immigrants at once.

The government contends it’s only setting priorities for whom it must deport given that Congress allocates just $6 billion a year for enforcement. That’s enough to annually remove roughly 400,000 immigrants who are in the United States illegally.

Texas and the 25 plaintiff states that sued to block the initiative don’t disagree that the president has wide authority over whom to remove. But they argue the plan is too broad, giving a blanket grant of ”lawful presence” to millions of immigrants rather than deferring their deportations on a narrow case-by-case level.

They say the president also ignored administrative procedures for changing rules and argued Texas would suffer by having to give the immigrants driver’s licenses. The state subsidizes the cost of each document by some $130.

Critics said Texas could increase the price for the license and that the cost would also be offset by greater taxes if the immigrants are allowed to work here legally.

It’s impossible to know why the court deadlocked. But James Ziglar, a former commissioner of the immigration service under President George W. Bush and a senior fellow at the Migration Policy Institute, a national think tank, said the justices might have split on whether Texas proved its ability to bring the suit — a legal concept known as standing. 

Allowing states to sue simply because they don’t like federal programs opens the floodgates to challenge any policies they disagree with that are clearly under the purview of the federal government, said Steve Vladeck, an American University Washington College of Law professor who specializes in the Supreme Court.

The original 2012 initiative, known as deferred action for childhood arrivals or DACA, has not been challenged and remains legal. About 713,300 youth have qualified for permits under this plan and experts say it’s lifted their earnings and enabled more to obtain health insurance and higher education.

On Thursday, both Obama and Homeland Security Secretary Jeh Johnson emphasized that the 2012 program is still in effect as is a 2014 memo issued by the president that prioritizes the deportation of immigrants who have committed crimes rather than families.

“We prioritize criminals, gangbangers, folks who have just come in,” Obama said Thursday.  “What we don’t do is to prioritize people who have been here a long time, who are otherwise law-abiding, who have roots and connections in our communities.”

Immigrant advocates said they were considering what legal challenges they could pursue. But the timing is perilously tight and it is likely too late.

“The reality is that the Obama administration is not going to be able to implement this program in the time they have left,” said Ziglar, the former immigration commissioner. “There’s a message to Congress here that the court has really punted it to the next administration … saying, ‘You guys have got to start dealing with the immigration problem which Congress has refused to do for decades.”