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June 23 — President Barack Obama's immigration programs won't go into effect, with a 4-4 U.S. Supreme Court deadlock today resulting in a block on those programs remaining in place ( United States v. Texas , 2016 BL 201458, U.S., No. 15-674, 6/23/16 ).
The ruling essentially spells the death knell for the deferred action for parents of Americans and lawful permanent residents program and expanded deferred action for childhood arrivals program, the hallmarks of Obama's November 2014 executive action on immigration. Although litigation could continue in the lower courts, it is unlikely to be resolved in time for the administration to get them running before the president leaves office in January.
The tie vote among the justices leaves in place a November 2015 decision from the U.S. Court of Appeals for the Fifth Circuit upholding a lower court's injunction against the programs. It doesn't say anything one way or another about their legality or constitutionality, which raises the possibility that a future president could implement something similar.
The decision is “devastating news” for both the immigrant and legal community, American Immigration Lawyers Association outgoing President Victor D. Nieblas Pradis told Bloomberg BNA June 23.
“The issues were not as difficult” in the case as they appeared, he said. There are “100 years of caselaw that indicates the executive branch has this power and many presidents have used the executive action power to impact immigration,” Nieblas said.
“Let’s be honest here, we’re running out of time. The clock is ticking,” Nieblas said. The proceedings in the U.S. District Court for the Southern District of Texas are still “at the beginning stages,” thus allowing for various motions as well as a trial on the merits, but timing is “a very high obstacle to be able to overcome,” he said.
The lawsuit against the deferred action programs, brought by Texas and 25 other states, argued that the states would be harmed by the programs because they would have to foot the bill for driver's licenses for potentially hundreds of thousands of program beneficiaries living within their borders.
The Obama administration estimated that the two programs together would benefit some 5 million undocumented immigrants throughout the country.
The president June 23 blamed Senate Republicans for the 4-4 tie, saying it was the result of their refusal to give a “fair hearing” to Merrick Garland, Obama's pick to replace the late Justice Antonin Scalia. “If you keep blocking judges from getting on the bench, then courts can't issue decisions,” Obama said during a press conference.
Although the president said his administration will have to abide by the Fifth Circuit's decision to keep blocking the programs, he refused to read anything into the Supreme Court's decision. “We take it seriously” when the full court issues a full decision on the merits, Obama said. But this decision wasn't any kind of statement on the merits of the case, he said.
“I don’t anticipate that there are additional executive actions that we can take” in the area of immigration, Obama said. “We can implement what we’ve already put in place that is not affected by this decision,” including the original DACA program and new immigration enforcement priorities, he said.
But “we’re going to have to abide by that ruling until an election and a confirmation of a ninth justice of the Supreme Court so that they can break this tie,” Obama said.
Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, said Obama's failure to act sooner is at least partially to blame for the decision.
“I seriously considered not showing up and not doing my job, because that seems to be going around,” Saenz said June 23 at AILA's annual conference in Las Vegas.
The “contagion of not doing your job starts with the Supreme Court,” Saenz said in his keynote address. He argued before the Supreme Court on behalf of potential DAPA beneficiaries in the case.
Texas's basis for standing—the driver's license cost—is “unprecedented,” he said. And now Chief Justice John Roberts, “an extreme skeptic about states’ standing to challenge actions by the federal government based simply on the day-to-day governance that states are engaged in,” has allowed the court to issue a decision that undermines that skepticism, Saenz said.
He also took aim at the leaders of the 26 states that brought the lawsuit, saying they failed “to act in the best interest of their own residents.”
Like Obama, Saenz blamed Senate Republicans for holding up Garland's nomination. “There is no question that we would have a decision” either upholding or striking down the deferred action programs if there were a full court, he said.
But “this administration failed to act early in its tenure on immigration reform” when it had the congressional composition to be able to push it through, Saenz said. And he added that Obama waited again in 2014 until after the midterm elections to announce his executive actions, further stalling their implementation.
“That put us in the position that made it possible for today’s indecision/nondecision to occur,” Saenz said.
Texas Attorney General Ken Paxton, as well as several Republican lawmakers, hailed the decision as a victory.
The states will now ask Judge Andrew Hanen of the Southern District of Texas to make permanent a preliminary injunction he issued that temporarily blocked the programs, Paxton told Bloomberg BNA June 23. But they will be returning to the lower court “with the wind at our backs,” he said.
The decision isn't just a victory for Texas but also for the American people, Paxton said. If the decision had gone the other way, the president would have been empowered to make a host of decisions like this one, rendering Congress largely irrelevant, he said.
“Today’s decision keeps in place what we have maintained from the very start: one person, even a president, cannot unilaterally change the law,” Paxton said separately in a statement issued June 23. “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.”
“Today, Article I of the Constitution was vindicated,” House Speaker Paul Ryan (R-Wis.) said in a June 23 statement. “The Supreme Court’s ruling makes the president’s executive action on immigration null and void.”
“The Constitution is clear: The president is not permitted to write laws—only Congress is. This is another major victory in our fight to restore the separation of powers,” Ryan said. The House intervened in the case on the side of Texas and the other states.
Donald Trump, the presumptive Republican Party nominee for president, said in a June 23 statement that the court's decision “blocked one of the most unconstitutional actions ever undertaken by a President.”
“The election, and the Supreme Court appointments that come with it will decide whether or not we have a border and, hence, a country,” he said.
Presumptive Democratic Party presidential nominee Hillary Clinton called the decision “heartbreaking” and said it “could tear apart 5 million families facing deportation.”
“We must do better,” Clinton said on Twitter.
While implementation of large-scale deferred action programs under Obama now is highly unlikely, the next president could set up similar programs that are restructured to respond to the concerns the state of Texas raised in the lawsuit, Nieblas told Bloomberg BNA. He suggested that the federal government could provide funding to the states to help with driver's license costs.
“I am convinced that this is another circumstance where a temporary defeat will result in long-term victory,” Saenz said during his keynote. “Whatever the impact of the presidential campaign, there will be real repercussions” for Texas and other states with large Latino and immigrant communities, he said.
Saenz said the immigrant community and activists will continue to pressure the administration to adopt policies and practices in line with what they want. That includes ensuring that Immigration and Customs Enforcement agents actually carry out the president's enforcement priorities, even without the benefit of a structured deferred action program, he said.
Speaking during a separate AILA conference session, AILA Executive Director Benjamin Johnson said immigration practitioners need to hold both parties accountable.
“It is true that the Republican Party is really wrestling with how do they address this issue” of immigration, he said. “At the same time, on the other side of the aisle, we’ve got to hold the Democratic Party accountable for delivering on promises,” Johnson said. “Being better than Donald Trump on immigration is not enough”—you need real ideas and a “rational plan” to carry them out, he said.
Kimberly Strawbridge Robinson contributed to this report.
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Text of the one-line Supreme Court decision is available at http://www.bloomberglaw.com/public/document/United_States_v_Tex_No_15674_2016_BL_201458_US_June_23_2016_Court.
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