President Barack Obama’s ambitious plan to overhaul U.S. immigration policy for millions of foreign nationals living in the U.S. came close to crashing down Thursday in a Supreme Court decision so brief that it was barely mentioned by Chief Justice John G. Roberts, Jr. If the policy is not yet entirely doomed, it could be after it is formally returned to a federal judge in Brownsville, Texas, who is sure to be guided by an appeals court ruling that already has said, in essence, that the government probably will lose.
Technically, the policy might have another test before the Supreme Court either before or after the Texas judge has finished, but the end of the Obama term in the White House in January and the uncertainty about who will succeed him in the presidency may leave the plan abandoned. Given partisan gridlock in Congress, there is little or no chance of a legislative plan to deal with more than eleven million undocumented immigrants now living in the U.S. and facing potential deportation.
After about nine weeks of opportunity to work out a majority one way or the other to decide the case of United States v. Texas, the Justices wound up splitting four to four. On the surface, that had a modest effect: it set no national precedent, and it simply left intact a preliminary ruling by the U.S. Court of Appeals for the Fifth Circuit last November blocking the government from enforcing the new policy anywhere in the nation. The appeals court upheld an order against enforcement issued in February last year by U.S. District Judge Andrew S. Hanen of Brownsville.
And, indeed, the final opinion by the Justices — a nine-word sentence that the Chief Justice noted in a bland, almost mechanical announcement near the end of Monday’s public session — produced no immediate drama.
But behind that announcement lay these potentially historic results:
First, a policy that the president had announced with great fanfare in November 2014 amid his disappointment with inaction in Congress, a policy that had never been allowed to go into effect, was now facing the prospect of never doing so.
Second, a group of twenty-six states with Republican leaders had gained a historic new opportunity to use the courts as a way to wage policy combat with a Democratic president.
Third, more than four million undocumented immigrants who had seen a chance to stay in the country and get jobs were facing a complete loss of that opportunity.
Fourth, the president’s claim to use the discretionary powers of his office when government gridlock stalled official action in Washington had been rebuked.
There was only a sliver of good news for President Obama in what the Court had done: his policy had not been ruled unconstitutional. The states that had sued had claimed that the president had failed to “faithfully execute” the immigration laws as passed by Congress — a command of the Constitution. But neither lower court had ruled on that claim, choosing instead to rule that the states were ultimately likely to win on challenges based on federal statutes.
The Court did not announce how any of the eight Justices had voted in the end, so there was not even a hint of where the discussions over a possible decision had broken down, or why at least one Justice from either bloc of four could not be persuaded to switch and make a majority. In a sense, then, the even split was another reflection in the Court’s work of operating with an even number of Justices, following the death of Justice Antonin Scalia in February.
When the states filed their challenge to the deferred deportation policy, they intentionally chose Judge Hanen’s court in Brownsville, because that judge had made a variety of public statements critical of government immigration policy. Judge Hanen ruled narrowly, concluding that the challenging states were likely to win when the case went to trial in his court; he said they probably would persuade him that the policy should have been put up for public comment before it was adopted by the government.
Because of his conclusion that they were likely to prevail on that point, Hanen wrote a nationwide preliminary injunction against enforcement. It applied both to the entire November 2014 policy as it applied to adult parents of children who had gained a right to remain in the country. The order also applied to an expansion of a 2012 Obama policy that had been deferring deportation of tens of thousands of those young immigrants. (The 2012 policy’s legality was not at issue before Judge Hanen.)
The judge also had ruled that the states had a legal right to sue to challenge the Obama policy, because at least one of them — Texas — would feel harmful financial effects of the legal presence in the country of many undocumented immigrants.
The government then took the case to the Fifth Circuit, which upheld the judge on the states’ right to sue, and joined the judge in concluding that the policy violated federal statutes. The Fifth Circuit ruled more broadly than Judge Hanen had on the statutory question, concluding that the policy was likely to be shown to be invalid as beyond presidential power in the immigration field.
That was the state of the case when it went to the Supreme Court, leading to Thursday’s decision to affirm the Fifth Circuit’s ruling.
The government does now have the option of filing a rehearing petition in the Supreme Court, but the Justices — with only an even number on the bench — have apparently been having real difficulty figuring out what to do with two rehearing petitions on unrelated cases. They have been studying those rehearing pleas for weeks, without taking any action on them.
If the government does not ask the Justices to reconsider, or if it does so but is turned down, the case then goes back to Judge Hanen’s court. A trial on the merits would be the next likely event in his court. But the judge had put the merits dispute on hold until he holds a status conference with lawyers on August 22. At that time, if not before, the government may try other legal maneuvers in his court.
One of the complications as the case returns to Hanen’s court is that he is also trying to deal with a dispute over what he claims was serious ethical misconduct in the case by Justice Department lawyers, who he found had failed to keep him fully informed about whether the government was moving ahead to enforce the policy when it was being reviewed in court.
That was supposed to be the central topic at the August 22 status conference. But with the Supreme Court having salvaged the case for the challenging states, Judge Hanen may have to start moving toward a trial on the merits of that challenge. As that continues to unfold, time will be passing in the last part of President Obama’s term in office, and his immigration policy’s chances will fade with those final months.