FOR the fourth time since the death of Antonin Scalia February, a stymied Supreme Court has split 4-4 and failed to come to a decision. Of the four ties, today’s deadlock over United States v Texas, a challenge to Barack Obama’s immigration orders, carries the highest stakes. Up to 5m undocumented immigrants who were the intended beneficiaries of Mr Obama’s 2014 executive actions have lost their chance to apply for a programme that would have given them temporary permission to work and relief from deportation.
The programme, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), sought to protect “hard-working people who have become integrated members of American society” and to keep families from being wrenched apart. DAPA did not confer legal status and was not a path to citizenship, but it gave people whose children were American citizens or permanent residents a chance to “come out of the shadows”, pay taxes and live without the constant fear of immigration agents knocking on their doors.
Before DAPA could get off the ground, a lawsuit from Texas and 25 other states claiming the programme was illegal presidential overreach led a federal judge in Brownsville, Texas to put Mr Obama’s plans on hold. The injunction, issued in February 2015 by Judge Andrew Hanen, a known hard-liner on illegal immigration, was upheld in a 2-1 decision later that year by the 5th circuit court of appeals. The Supreme Court agreed in January 2016 to review the appeals court’s ruling and heard arguments in April. The tenor of the hearing suggested that the justices were split in two equal camps over whether Mr Obama’s orders were legal. That suspicion was confirmed on June 23rd, when Chief Justice John Roberts announced the court’s one-line ruling: “The judgment is affirmed by an equally divided Court.”
This outcome carries precisely the same effect as if the justices had never agreed to hearUnited States v Texas in the first place: the 5th circuit opinion upholding the injunction remains in force, dealing Mr Obama a whimper of a stunning defeat, depriving him of a goal he campaigned on in 2008 and nearly achieved in 2013 when the Senate approved a comprehensive immigration-reform bill to reckon with America’s 11.3 undocumented immigrants. In remarks following the Supreme Court’s announcement in United States v Texas, Mr Obama praised the “nearly 70 Democrats and Republicans” who voted for the measure in the Senate and recalled that the bill was doomed when “Republicans in the House refused to allow a simple yes or no vote”. As a result, Mr Obama said, he used his “existing authority” to make America’s immigration policy “smarter, fairer and more just”.
The executive branch has the discretion to decide whom to deport, Mr Obama claimed, and since Congress appropriates “resources only to remove a fraction of the unlawful aliens” the White House has the de facto authority to prioritise the removal of some over others. Oddly, Texas and other objecting states ultimately granted this proposition, turning the case into a semantic quibble over whether the president’s memorandum unlawfully conferred a legal status on illegal immigrants. The administration insisted that its use of the term “legal presence” did not carry broad significance and did not preclude the government from rescinding an individual’s protected status. Those words only mean that an individual may lawfully work, the outgoing solicitor general, Donald Verrilli, told the justices in April. It would be fine to “put a red pencil through it” and DAPA would still function as intended, he said. This line of reasoning was evidently unpersuasive to four of the justices—but since no opinions were issued, we may never know exactly why.
The news is not all bad for law-abiding undocumented immigrants. Mr Obama emphasised that the Supreme Court’s action does not impinge on the original terms of another programme he announced in 2012, Deferred Action for Childhood Arrivals (DACA), which has given around 730,000 “dreamers”—immigrants who came to America as children—a dose of relief from deportation. And he explained that the administration remains committed to targeting “criminals and gang-bangers” for deportation rather than people without papers who live and work in America without stirring up trouble. But these individuals still live under “perpetual cloud”, Mr Obama said, and steps toward an overarching approach to America’s immigration troubles will have to await the election of his successor. The fate of America’s millions of undocumented immigrants hinges on the identity of that person and the character of the next Congress.
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