Supreme Court in a split non-decision leaves millions in Limbo

On Thursday June 23, the United States Supreme Court finally “dropped the other shoe” and announced the results of its deliberations on the DAPA (Deferred Action for Parents of Americans) and extended DACA (Deferred Action for Childhood Arrivals) cases.  Unfortunately, these results take us nowhere positive:  The justices split four to four on a case originally brought against the Obama administration by 26 Republican state attorneys general who had asked the courts to block the implementation of Obama’s 2014 executive order which would have given many undocumented immigrant parents of U.S. citizen and permanent legal resident children renewable three year deferments of deportation and work permits.

The executive order, now blocked, would also have expanded the number of people eligible for the earlier DACA (program).  In total, the orders might have provided relief for between four and five million people, slightly fewer than half the undocumented immigrants in this country.

The Republican attorneys general, engaging in the all too common practice of venue-shopping (looking around for the friendliest court in which to file their suit), found Andrew Hanen a particularly eccentric federal district judge in Texas. Back in February, 2015 he agreed with them that the DAPA and extended DACA executive order was an unconstitutional overreach by the executive branch. He said it would have forced the state of Texas to expend money not appropriated by its own legislature to pay for drivers’ licenses for the beneficiaries of this program.

The plaintiffs conceded that the government could give relief to individuals one by one, but asserted that only Congress could grant such relief to an entire category of people (ignoring the fact that for more than a decade, Congress has sat on its hands regarding immigration reform). The government replied that Texas did not have to provide drivers licenses if it did not want to.

Others pointed out that every study of the matter has shown that undocumented immigrants, once legalized, earn much more money and also pay much more in federal, state and local taxes – so Texas and the other 25 states would not lose money, but would benefit financially.   This was an important item, because to file such a suit a plaintiff needs to demonstrate that he or she has “standing”, i.e. a material interest in the outcome of the case. If the states could not show that they would be harmed by the Obama administration’s actions, the courts might have thrown out the suit on the grounds of lack of standing. (story continues after video)

Video: Illinois Coalition for Immigrant and Refugee Rights press conference in front of the Immigration control and enforcement detention center in Chicago, June 23. Earchiel Johnson | PW.

The Obama administration appealed Hanen’s order, but lost at the appeals court level on a divided vote. The government then appealed the case to the U.S. Supreme Court. 

The Supreme Court took the case and announced its non-decision today.  The minimalist announcement did not explain which judges voted with the Obama administration and which with the Republican plaintiffs, nor did it publish any statements by the individual judges.  But activists who have been following the case closely believe that in all probability, Justices Elena Kagan, Ruth Ginsburg, Steven Breyer and Sonia Sotomayor took the side of the Obama administration, while Chief Justice John Roberts and  Justices Clarence Thomas, Thomas Alito and Anthony Kennedy took the side of the Republican plaintiffs.

This would suggest a partisan and/or ideological split on the court.   Had Justice Antonin Scalia not died unexpectedly, the case would probably have been decided 5 to 4 for the plaintiffs, which would have been precedent setting and therefore worse for the immigrants and their families.  But as it is the situation is bad enough.  Because of the impasse on the Supreme Court, the lower court ruling stands.  The Supreme Court did send the case back to Judge Hanen for further consideration, but it is extremely unlikely that he will change his mind.

This means that the DAPA and extended DACA programs cannot be implemented, leaving millions of immigrants and their families in a bad situation, made worse by the fact that the Republican Party presidential candidate, Donald Trump, has decided to make the 2016 presidential election be about his demonized image of evil “illegal immigrants” who should be rounded up and deported en masse. 

Though this result was expected, organizations of immigrants and their defenders reacted with disappointment, anger and defiance.  Maria Elena Hincapie, executive director of the National immigration Law Center, said in a statement:  “The stakes in United States versus Texas could not have been higher. Millions have watched and waited for the Supreme Court to affirm the president’s authority to inject some common sense into our immigration system. Today, the eight justices failed to act, and countless families will suffer as a consequence.”

However, Hincapie added, “[We] will not sit back. We urge the Department of Justice to seek a rehearing for when a ninth justice is named to the Supreme Court.”   Hincapie was referring to the fact that Republicans in the Senate have been blocking President Obama’s nomination of  Merrick Garland to replace Scalia.

The AFL-CIO also spoke out angrily.  President Richard Trumka said:  “Today’s ruling is a setback for a more humane and rational enforcement of our immigration laws….we will redouble our organizing efforts to defeat the obstructionist, anti-immigrant forces behind this lawsuit and ensure that all working people can assert their rights on the job and in the community without fear of deportation”.

President Obama himself expressed disappointment with the ruling, emphasizing his disgust with the failure of the Congressional Republicans to approve  Garland’s nomination to the court.  Obama said that his administration would continue to prioritize deportations, concentrating on people who have been convicted of crimes and not every undocumented immigrant.

The blocking of the executive orders will harm many but will also spur the immigrants’ rights movement to greater efforts in registering voters and getting out the vote in November so as to defeat Donald Trump and change the composition of Congress in a more immigrant friendly direction. 

Republican candidate Donald Trump hailed the Supreme Court decision and said it showed the danger of Hillary Clinton whose stated support for the immigrants’ aspirations is “tearing American families apart.”  He did not explain this strange statement; the only families being torn apart are those whose breadwinners are being deported.

Photo: Illinois Coalition for Immigrant and Refugee Rights press conference in front of the Immigration control and enforcement detention center in Chicago, June 23. Earchiel Johnson | PW

Video: Earchiel Johnson/PW


Emile Schepers
Emile Schepers

Emile Schepers is a veteran civil and immigrant rights activist. Born in South Africa, he has a doctorate in cultural anthropology from Northwestern University. He is active in the struggle for immigrant rights, in solidarity with the Cuban Revolution and a number of other issues. He writes from Northern Virginia.