New York Times: “Supreme Court Tie Blocks Obama Immigration Plan”

Today the US Supreme Court issued a 4 to 4 split decision in the long-awaited case, United States v. Texas, effectively upholding the lower court’s injunction halting the expansion of the Deferred Action for Childhood Arrivals (DACA) program and the creation of a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The original DACA program launched in 2012 remains in place. This one-sentence decision is a major blow to the executive actions President Obama proposed in November 2014 as a result of congressional inaction on comprehensive immigration reform. The decision will potentially affect as many as five million undocumented immigrants who would have been shielded from deportation and allowed to legally work in the United States had these programs been allowed to proceed.    

President Obama, speaking at the White House, criticized the 4 to 4 tie. “But for more than two decades now, our immigration system, everybody acknowledges, has been broken. And the fact that the Supreme Court wasn’t able to issue a decision today doesn’t just set the system back even further, it takes us further from the country that we aspire to be.” After Obama announced his executive actions in 2014, Texas and twenty-five other states challenged the plans, which were subsequently blocked in federal district court the next year. “Today’s decision keeps in place what we have maintained from the very start: one person, even a president, cannot unilaterally change the law,” Ken Paxton, the Texas attorney general, says in an issued statement. “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.”

Steve Vladeck, CNN contributor and professor of law at American University Washington College of Law, says the decision illustrates how handicapped the Supreme Court is when it’s not fully staffed, referring to the death of Justice Antonin Scalia earlier this year. The Supreme Court will not be able to issue an official ruling on the case until a ninth judge is confirmed. Vladeck tells CNN: "Although proponents of President Obama's immigration plan might prefer this result to a 5-4 loss, which would have set a nationwide precedent, rulings like these create uncertainty for the courts and the country going forward—uncertainty that, at the end of the day, puts more pressure on the political branches and dilutes the role of the Supreme Court." 

This decision is a disappointment to many activists who have been campaigning for comprehensive immigration reform for years. Summarizing the frustrations that many feel, Victor Nieblas Pradis, president of the American Immigration Lawyers Association (AILA), says: "In another blow, the Supreme Court has denied the opportunity for parents of United States citizens and students to seek refuge and protection from a dysfunctional immigration system that is broken and apparently unfixable by our elected leaders.” And Benjamin Johnson, AILA Executive Director, adds: “Though today's decision is disappointing, we must remember that this is not the end of the road for these incredibly important programs. The lower courts will continue to consider the case and ultimately, I would not be surprised if it ends up before the Supreme Court once again. In the meantime, Congress must do its job and pass smart immigration laws that will keep families united, benefit the economy, and propel our country forward.”

New York Times: “Scalia’s Absence Is Likely to Alter Court’s Major Decisions This Term”

Justice Antonin Scalia’s recent death will likely complicate the work of the Supreme Court’s eight remaining justices for the rest of the court’s term as well as possibly change the outcomes of major cases facing the court including the closely-watched and highly-anticipated United States v. Texas. This case stems from Texas and other state’s challenge to President Obama’s plan to defer the deportations of more than four million unauthorized immigrants by expanding Deferred Action for Childhood Arrivals (DACA) with a larger program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which would grant “lawful presence” to certain undocumented immigrants who have relatives lawfully in the US.  

Since the court requires at least five votes to accomplish most things, if a case is deadlocked at 4-to-4, the court can automatically affirm the decision under review without giving reasons and without setting a Supreme Court precedent—which in the case of United States v. Texas would uphold the lower court injunction against DAPA—or, more likely some say, the court can set the case down for re-argument in the fall term starting in October in the hope that the case will be decided by a full court. A full court, however, by the fall term is very unlikely since the Republican-controlled Senate Judiciary Committee has stated that they will oppose any Obama nominee, nor hold any committee meeting on a nominee. “It has been an extraordinarily long time since the Supreme Court has been forced to deal with a departure that occurs in the middle of the term, as the court does here with Justice Scalia’s death,” Justin Driver, a law professor at the University of Chicago, told the New York Times. 

While it cannot be said for sure how Scalia would have ruled in United States v. Texas, his angry dissent in the case over Arizona's harsh immigration law in Arizona v. United States may be an indication. In that dissent, Scalia directly criticized Obama's immigration policy of deferring deportation for potential DREAM Act beneficiaries and described Arizonans as being "under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy." 

The Center for Immigration Studies, an organization that argues for low-immigration numbers, points out that the Obama administration’s insistence that the Supreme Court hear the case as quickly as possible before the merits have been fully argued in the lower courts may backfire, since a Republican-controlled Senate may be even more unlikely to confirm an Obama appointee this year given the important precedent-setting nature of United States v. Texas. Randal Meyer, a legal associate at the Cato Institute’s Center for Constitutional Studies, believes there is a possibility that even with Scalia gone the Court may vote in favor of Texas since there is “some chance that at least some of the liberal justices will ‘switch sides’ to reign in presidential lawlessness, as executive authority can be wielded by both parties.”

The New York Times points out, however, that it’s possible that Chief Justice Roberts, Justice Kennedy, or both may join the liberals on the bench in rejecting the lawsuit’s challenge, perhaps on the ground that “Texas lacks the direct and concrete injury that gives it standing to sue.” Shikha Dalmia, a senior policy analyst at Reason Foundation, unconventionally argues that Scalia may have been an unexpected immigration ally to court progressives in this case. Despite his heated dissent in Arizona v. United States, she writes, Scalia “had strong (though somewhat inconsistent) civil libertarian tendencies that more than occasionally came to the defense of immigrants. Also, his judicial commitment to apply the text of the Constitution and law as written may well have prompted him to uphold these programs.”

Benjamin N. Cardozo School of Law's Andrea Saenz explains further: "Scalia voted with his liberal colleagues for the noncitizen over the government in nearly every landmark crimmigration case [sentencing of immigrants involved in crimes] in recent history." Saenz argues that Scalia had no “inherent animus against immigrants and could be convinced by good arguments based on proper statutory construction.”

David Leopold, a past president and general counsel of the American Immigration Lawyers Association, told Bloomberg DNA that he believed the court would favor the Obama administration despite Scalia's absence. “I don't think that we're necessarily looking at a 4-4 decision,” he said. “The administration has a very strong case…I do strongly believe that the court is going to reverse the Fifth Circuit[.].” Attorney Beth Werlin agrees:

The fact of the matter is that this case was never about Justice Scalia. The President’s executive actions on immigration are lawful exercises of his discretion, and in adopting these policies, he simply is enforcing existing immigration laws passed by Congress. The Supreme Court precedent on this is clear. The Court has repeatedly held that it is well within the executive’s authority to decide how and when to enforce the law and to exercise prosecutorial discretion. As recently as 2012, in Arizona v. United States, the Supreme affirmed that the federal government has discretion to set immigration enforcement priorities.

The expanded DACA and DAPA programs, she goes on to say, clearly falls within this and consequently she believes there will be a clear majority in favor of the Obama administration.  United States v. Texas is scheduled to be argued in April of this year, and we’ll provide more updates as the case progresses and the Supreme Court issues their decision.

ABC News: "U.S. Appeals Panel Won't Lift Hold on Obama Immigration Action"

Last week, the 5th Circuit Court of Appeals in New Orleans refused to lift the temporary hold placed on parts of President Obama's executive actions on immigration reform. The Justice Department had asked the 5th Circuit to reverse a Texas judge who had agreed to temporarily block the president's plan in February, after twenty-six states filed a lawsuit alleging Obama's actions were unconstitutional. In the two-to-one ruling, 5th Circuit judges Jerry Smith and Jennifer Walker Elrod said that "the federal government lawyers are unlikely to succeed" in the underlying lawsuit filed by twenty-six states including Texas against the executive actions. Back in February, 2015, US District Judge Andrew Hanen in Texas, in a scathing decision accusing the government of deception in their representations, ruled to place the temporary hold on President Obama's executive action to expand the Deferred Action for Childhood Arrivals (DACA) and to create the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. The expanded DACA had been set to take effect February 18, and the DAPA program was scheduled to begin May 19. These programs would have granted work authorization and certain protections from deportation to millions of undocumented immigrants.

“The separation of powers and checks and balances remain the law of the land, and this decision is a victory for those committed to preserving the rule of law in America,” said Texas Attorney General Ken Paxton in a statement. While the decision is a victory for Texas and the twenty-five other states which supported the lawsuit, another fourteen states and the District of Columbia have appealed the decision, arguing that the Texas lawsuit failed to consider the economic benefits of immigration action.

''Ultimately, this is just a pause button,'' Laura Collins, the director of immigration policy at the American Action Forum, said to PRI. ''Until the court is able to rule fully on the merits of this, this doesn’t really talk about whether this program is appropriate for the executive branch to put forward.'' White House spokeswoman Brandi Hoffine said in a statement that the two-to-one 5th Circuit Court ruling ''chose to misinterpret the facts and the law.''

US Democratic Rep. Luis Gutierrez also said in response to last week’s court decision:

It is disappointing but not unexpected given the make-up of the Fifth Circuit and the panel hearing this preliminary case.  I am confident millions of immigrants will eventually apply for DAPA and DACA, because the law is undeniably on the President's side, as is public opinion. Meanwhile, I continue to work with Democrats and others who are preparing immigrant communities for the application process once the legal maneuvering is resolved and the courts reject the arguments of the Republican Governors and Attorneys General.  The longer the court process takes, the harder it is to imagine a Republican candidate remains competitive in a bid for the White House, because increasingly, this will be the defining and decisive 2016 campaign issue.

This ruling will not affect H-4 dependent spouses who are now eligible to apply for Employment Authorization Documents (EADs) as part of President Obama's executive actions.