The U.S. Supreme Court has split 4-4 on whether President Obama’s immigration plan to assist the undocumented parents of certain children who are here legally is allowed.
That means the 135-page lower court ruling Texas v. United States of the U.S. Court of Appeals for the Fifth Circuit, which invalidated the Obama plan, remains the law.
Most Circuit Court rulings only cover the several states in the circuit court’s jurisdiction. But because the immigration issue is national in scope, the Fifth Circuit has asserted its ruling controls the nation.
As a result, the Supreme Court’s inaction will create confusion and distress for millions of people.
What may be stunning to non-lawyers about this result is that no U.S. Supreme Court Justice authored any opinion at all – even to express futile disagreement with the lower court.
All the court released was a tersely worded statement: “The judgment is affirmed by an equally divided court.” We do not even know how the court divided.
And so more than four million people may be deported and families separated without any discussion by the highest court of the land designed to address people’s ultimate rights.
After the ruling, President Obama said the lack of a decision: “demeans our tradition of being both a nation of laws and a nation of immigrants.”
The ruling on Texas v. The United States is only one of at least five 4-4 splits handed down by the court since the death of Justice Antonin Scalia.
How did we get here?
The answer has several elements but the real answer is Congress.
Stalled immigration reform
When President Ronald Reagan was in office, he proposed immigration reform.
Some minor changes have been made since the 1980’s in U.S. immigratiom laws, but the issue is still political dynamite. Congress worked to achieve bi-partisan immigration legislation for a period of time, with the Senate passing a sweeping overhaul in the summer of 2013. Even former Republican presidential candidate Sen. Marco Rubio of Florida was involved.
But House Republicans killed the reform effort in November of 2013 based on concern over potential political backlash.
President Obama, however, believed that some type of humane action was necessary on the immigration issue. And so, in November of 2014, he proposed the Deferred Action for Parents of Americans and Lawful Permanent Residents Program (DAPA).
DAPA in turn was challenged by 26 states as illegal and unconstitutional. They successfully obtained a preliminary injunction from U.S. District Judge Andrew Hanen, who is well known for his conservative views.
The U.S. government appealed. A divided three-judge panel of the Fifth Circuit upheld the preliminary injunction on several grounds and even added some of its own.
To the courts
The U.S. had argued powerfully that this program injured nobody and that the courts lacked the “standing” to decide the case without a concrete injury. The best that the federal district judge and Circuit Court could come up with was to say that injury existed because these undocumented individuals would be entitled to driver’s licenses under Texas law. This would supposedly cost Texas money and pose a burden that gave Texas standing to sue.
Determined to decide this case, the Fifth Circuit also quickly rejected the obvious counter-argument that Texas would recoup these fees through the license payments, and employment taxes these individuals would have to pay.
The Fifth Circuit then essentially ruled that there were already federal laws in place that governed the status of the individuals covered by DAPA. The Circuit ruled that the Obama plan contradicted these laws and did not even comply with certain administrative law procedures.
This part of the ruling goes against the principle of prosecutorial discretion, that allows the President, the executive branch, and law enforcement generally to make rational decisions about how to allocate resources and who to prosecute.
I believe DAPA was a kind of codification of Obama’s priorities. President Obama had decided that it did not make sense to target these generally law abiding, hard working, often family oriented, foreign individuals. The Fifth Circuit dissenter, Judge King, also reasoned that Texas lacked standing and that this was an area of presidential discretion.
Later, the U.S. Supreme Court issued an order when the DAPA case was pending before it. The Supreme Court invited the parties to examine the deeper constitutional question of whether President Obama’s actions violated a constitutional provision that specifies the President must “take care” that the laws are “faithfully executed.” Because of the Supreme Court tie, however, the Court never addressed this potentially decisive question as a full Court with nine justices would have.
How could such a situation unfold in a country known for the rule of law and for protecting constitutional rights?
The missing ninth justice
The answer in large part is that the Republican controlled Senate has refused to allow any hearing or vote regarding President Obama’s nomination to the U.S. Supreme Court, Merrick Garland.
This is virtually unprecedented. A Democratic Congress, for example, confirmed Republican nominated Justice Anthony Kennedy during the 1988 election campaign. The Democrats were not angels when they controlled the confirmation process but they did nothing like this.
The Republicans and Sen. Chuck Grassley of Iowa, chair of the Senate Judiciary Committee, have ignored Senate custom and procedures on such matters, ignored the public interest, and not followed constitutional law. They have refused to offer “advice and consent.”
The eight-member court has issued other unusual decisions. For example, in Zubik v. Burwellthe Court issued a strange order requesting that the opposing parties compromise and resolve the matter themselves. This was the important contraceptive mandate case.
So it’s not entirely clear what happens next.
Presumably this immigration issue will now become a political football, another national problem that will go unaddressed by a Congress with approval ratings as low as 9 percent.
The Senate has now prevented the President and the U.S. Supreme Court from acting as well – effectively shutting down two branches of government.
This situation must change or our democracy and human rights will be diminished.