In an anti-climatic end to what, at one point, appeared like it would be one of the most important immigration cases to reach the Supreme Court in decades, the justices split 4–4 on Thursday on a challenge to Obama administration programs that could have allowed nearly 5 million undocumented immigrants to temporarily work and remain in the country. Though this decision is a tie and will not bind future court decisions, it is, in effect, a shattering loss for the immigrants who hoped to benefit from these programs.
The plaintiffs in this case, led by the state of Texas, appear to have actively shopped around for a trial judge who is openly hostile to immigrants. That strategy has now paid off. The trial judge, Judge Andrew Hanen, issued an unusual nationwide injunction halting the new immigration programs. And a split decision in the Supreme Court is not enough to lift that injunction.
Texas v. United States involves a new program, Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) and an expansion of the existing Deferred Action for Childhood Arrivals (“DACA”). Both programs relied on the executive branch’s broad discretion to set enforcement priorities in the immigration context, as well as longstanding laws and regulations establishing what happens to immigrants granted “deferred action,” a kind of low-priority status which indicates that they will not be targeted for deportation proceedings.
As recently as 2012, in Arizona v. United States, the Supreme Court reiterated the executive branch’s primacy on questions of immigration enforcement. “A principal feature of the removal system is the broad discretion exercised by immigration officials,” Justice Anthony Kennedy explained in an opinion joined by Chief Justice John Roberts. Indeed, executive branch officials “as an initial matter, must decide whether it makes sense to pursue removal at all.”
Four years later, however, it appears that Roberts and Kennedy took a very different course. Although the one-sentence order handed down by the Supreme Court on Thursday does not indicate how the justices voted, their comments at oral argument in this case suggest that they split along party lines.
The practical effect of Thursday’s decision is that Judge Hanen’s order suspending the programs will remain in effect at least until a ninth justice is confirmed who can resolve this case once and for all — or, barring that, a new president is elected who does not share President Obama’s views on immigration. In light of Senate Majority Leader Mitch McConnell’s (R-KY) promise to confirm no one Obama nominates to the Supreme Court, that means that DAPA and expanded DACA are almost certainly dead for the duration of the Obama presidency.
Whether they can be revived in the next presidency, moreover, will depend as much on who controls the Senate as it will on who controls the White House. Because if a ninth justice cannot be confirmed next year, it is unlikely that any current member of the Court will change their mind about this case.