In November 2014, soon after the midterm elections, President Obama announced he’d found a way forward on overhauling immigration policy, relying exclusively on his executive authority. As regular readers may recall, the result was a policy known as DAPA – Deferred Action for Parental Accountability – in which the White House, among other things, extended temporary status to millions of undocumented immigrants, shielding them from deportation threats and allowing them to apply for work permits.
At the time, the Justice Department took the unusual step of publishing a dense, 33-page legal memo, explaining in great detail exactly why the president’s executive actions are legally permissible under existing laws, rulings, and precedents. Federalist Society members couldn’t come up with a constitutional objection; Obama’s actions are in line with what some of his Republican predecessors did without incident; and the whole legal argument against Obama’s actions seemed a little silly.
And yet, the White House’s Republican critics felt a little differently, and 26 states filed a suit challenging DAPA. In an unexpected result, the far-right opponents of the administration’s policy have won – at least for now. NBC News’ Pete Williams reported this morning:
The U.S. Supreme Court split 4-4 Thursday over a challenge to President Obama’s immigration policy, a result that prevents the administration from putting the program into effect during the rest of his term. […]The death of Antonin Scalia left the Supreme Court evenly divided on the issue. Thursday’s tie vote means the justices were unable to announce a ruling, an outcome that leaves in place the lower court rulings against enforcing the plan.
Ordinarily, we’d get more guidance from the ruling itself, but in this case, the decision is literally one sentence: “The judgment is affirmed by an equally divided Court.” It doesn’t even say which justices voted which way, though it doesn’t take a legal expert to guess how the justices were divided.
As a substantive matter, Americans won’t see a shift in policy – DAPA was already on hold by court order – but millions of immigrants were poised to benefit from President Obama’s policy, and as a result of the Supreme Court’s tie, that will not happen, at least not this year.
Note, the high court didn’t strike down the administration’s policy, and if you see anyone saying the Supreme Court concluded that DAPA is unconstitutional, they’re wrong. What the White House hoped to do was begin enforcing its own policy, and because of today’s 4-4 decision, that’s on indefinite hold.
So what happens now? As we discussed in April, there is no Plan B. This morning’s developments mean that the next president will be responsible, not only for filing the Supreme Court vacancy, but also for shaping the future of American immigration policy.
We knew the 2016 presidential election would be important, but it’s significance just increased a lot more.
Update: Hillary Clinton’s presidential campaign issued a statement soon after the decision was announced – in English and Spanish – reacting to the news. I don’t ordinarily quote candidates at this length, but given the circumstances, it seemed important to note Clinton’s statement in its entirety:
“Today’s deadlocked decision from the Supreme Court is unacceptable, and show us all just how high the stakes are in this election. 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. 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.
“Today’s decision by the Supreme Court is purely procedural and casts no doubt on the fact that DAPA and DACA are entirely within the President’s legal authority. But 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. 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.
“This decision is also 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. 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.
“I believe we are stronger together. When we embrace immigrants, not denigrate them. When we build bridges, not walls. That is why, as president, I will continue to defend DAPA and DACA, and do everything possible under the law to go further to protect families. It is also why I will introduce comprehensive immigration reform with a path to citizenship within my first 100 days. Because when families are strong – America is strong.”