What the Supreme Court Did (and Didn’t Do) Today on Immigration

“This is a clear reminder of the consequences of Republican obstruction of Obama’s current SCOTUS nominee.”

The Supreme Court issued a one sentence response today to President Obama’s Deferred Action for Parents of Americans (DAPA): “The judgment is affirmed by an equally divided Court.” That means that, because of a 4-4 tie, the injunction blocking the plan from taking effect stands. As the President pointed out today, it affirms the status quo.

It is important to keep in mind that Obama’s previous action – Deferred Action for Childhood Arrivals, or DACA – was not contested and therefore continues to be in effect. Also still in place are the priorities this administration outlined for immigration enforcement.

The above statement from the Court does not indicate a ruling about the Constitutionality of DAPA – that is still an open question to be addressed at a later date.

As many are noting – including President Obama – this is a clear reminder of the consequences of Republican obstruction of his current SCOTUS nominee, Judge Merrick Garland. With nine Justices, we would have gotten a definitive ruling from the Court. The one thing I haven’t seen mentioned is that if Justice Scalia were still alive, there is no doubt that DAPA would have been struck down. We never had much trouble predicting where he would stand on issues.

It was a district court in Texas that issued the injunction against DAPA – which was then upheld by the 5th Circuit Court of Appeals. Kevin Drum brings up an interesting question: “What happens if a similar case goes forward in, say, California, and the 9th Circuit rules differently?” That is something Ian Millhiser pondered not long after Scalia’s death.

Where things get complicated is if the Justice Department successfully obtains an order from a different circuit upholding the program, or if an immigrant who hopes to benefit from the program obtains a similar order. The Fifth Circuit is among the most conservative courts in the country, and it is unlikely that every circuit will follow its lead. In that case, there will be competing court orders holding the policies both legal and illegal, and no possibility of Supreme Court review. It is not immediately clear what happens in such a case.

While all of this puts a spotlight on what the two presidential candidates would do with Supreme Court nominations, it should also remind us that the only real and permanent solution on the issue of immigration is congressional action on a package of reforms that would include a pathway to citizenship.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly.