SCOTUS on Deportation: A Non-Decision with Teeth

US-Supreme-CourtBy Cecilia Wang

Today the Supreme Court announced that it was deadlocked four to four on United States v. Texas. The one-line non-decision leaves unanswered the central question about the president’s authority to set policy guidelines for the exercise of prosecutorial discretion in the deportation system. But it is a non-decision with a profound impact. Millions of American families whose lives and dreams hinged on the Supreme Court’s decision will keep waiting and fighting.

Those families joined lawyers and lawmakers on all sides of the issue in watching for the dénouement of an epic legal battle. The Court was to have answered questions relating to the practical realities that our government and our society confront when Congress has failed to enact sensible statutory reform to address the fact that millions of undocumented immigrants live in the United States, have children and spouses who are U.S. citizens, work and pay taxes, and otherwise contribute to American communities: Can the president set general guidelines for deferred action, the exercise of discretion to refrain temporarily from deporting an individual?

And when deferred action has been granted, can federal immigration officials exercise their statutory authority to grant employment authorization, so that those individuals can continue to support themselves and their families without the dangers (to individuals and our labor markets) inherent in a shadow economy? According to the consistent practice of the executive branch, across administrations both Republican and Democratic, the answer to both questions has been yes. And Congress has repeatedly reaffirmed and acquiesced in that consistent executive branch practice.

These powers have traditionally and structurally been in the hands of the federal executive branch. But for now, based on a lawsuit by twenty-six states, the president’s exercise of this longstanding deferred action authority has been stopped in its tracks. The decision of a single district judge, affirmed by two judges on the Fifth Circuit (over the dissents of two other Fifth Circuit judges in two separate appeals), will remain in place, leaving in limbo millions of parents of U.S. citizens and lawful permanent residents who met the eligibility requirements to apply for deferred action and work authorization under the president’s guidance.

One thing is for sure. Today’s one-line non-decision is not the last word. Whether the Justice Department files a petition for rehearing in the Supreme Court – and it should – the litigation will continue, beyond the preliminary injunction stage of this case and perhaps wending its way back up to the Supreme Court. And millions of American families will continue the fight.

Cecillia Wang is Director of the ACLU Immigrants’ Rights Project.


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19 thoughts on “SCOTUS on Deportation: A Non-Decision with Teeth”

  1. Barack Palin

    It’s my understanding that a decision was made.  Obama didn’t have the authority to enact this law without going through Congress and the SCOTUS vote blocked Obama from trying to enact it.

        1. David Greenwald

          True, but that’s quite a bit different from what you said below. This doesn’t create a precedent, it just means that the decision is deferred until after the Presidential election.

        2. hpierce

          David… probably WELL AFTER the November elections… it is likely that the Supreme Court will be “playing a man down” until this time next year, depending who wins the presidency, and which party controls the Senate.

        3. Barack Palin

          Any law can be brought back to SCOTUS, so it’s possible this could come back too, but then again it might not. You act as if it’s in some kind of limbo, but it’s not.  The lower court’s ruling stands because SCOTUS did not overturn it.

        4. The Pugilist

          I don’t agree.  Trump is not going to win.  He’ll probably lose badly.  The Republicans will confirm the current appointee rather than leaving it to chance that Hilary appoints a more liberal nominee.  My prediction is that Obama will then re-introduce the current executive order with the belief that the new court will not overturn it.

        5. The Pugilist

          You are correct BP, the law is not in limbo, but because it was only a lower court ruling, it doesn’t have precedent setting ability.  The result is that as I explained above, there is a clear path for it to come back, assuming Clinton wins as I expect in November.

        6. Sam

          “I don’t agree.  Trump is not going to win.”

          Just hours ago the UK voted to leave the EU, even though they are going to endure economic hardship, for two main reasons. First because of immigrants flooding the country from Eastern Europe taking all of the low skilled jobs and second because they lost faith in all of the major political parties in power had their best interest in mind.

          Meanwhile in the US you have a socialist almost win a major party nomination and a “reality TV star” win enough delegates so that he should be the other party’s nominee for President. He is going to run against someone that has been in politics almost all of her life and has a list of “questionable” decisions a mile long and is against deporting.

          There are some striking similarities.

        7. tribeUSA

          Sam–good analysis; the MSM and politicos have been minimizing Trump and his popularity from the get-go. As if anything could be more hideous than the democratic candidate. It is likely there will be an all-out attack on Trump by the MSM and politicos on both sides of the aisle until the election–I sincerely hope this galvanizes the Trump base and brings more of those wavering to the Trump side–no matter how much many voters are uncertain of Trump, most voters certainly have no confidence in the MSM or in most party representatives.

          –oops, I accidentally reported your comment (thought it was reply button)

  2. Eric Gelber

    Keep in mind, as noted in the article, the Fifth Circuit Court of Appeal affirmed a preliminary injunction. That means the 2014 executive action is enjoined pending the litigation. Once the lower court proceedings are completed, this issue could very well end up again in the Supreme Court.

  3. zaqzaq

    I suspect that any future appropriations will include language that prohibits the use of federal funds for the deferred action plan proposed by Obama.  It also appears to be the position of Congress that sensible reform should not mean amnesty which the deferred action plan was a step in that direction.

    1. Don Shor

      And then hopefully some day Congress will pass immigration reform that includes a path to citizenship for these folks. The Senate bill passed in 2013 would be a good starting point .

        1. Don Shor

          There are millions here who are living and working and part of our society. Many of them have legal family members. They need a path to citizenship. That will need to be part of any comprehensive immigration reform if it is to pass the Senate and House. Really, the components of a compromise immigration reform bill that can pass and get signed into law are well known. Neither party at the moment has any incentive to move forward with that. Perhaps after the election, the next president will start the process again. The Senate bill that passed in 2013 would be a good starting point.

        2. The Pugilist

          Conservatives seem to have this pipe dream that suddenly we are going to round up tens of millions of people and deport them.  Even if we could that, the disruption to the economy would be disastrous.

        3. Barack Palin

          Not all conservatives.  I think you’ll find Trump backing off that too.  I’m not for rounding them up but they shouldn’t be rewarded with citizenship either unless they go through the proper channels like others have had to.

        4. The Pugilist

          I understand that position even less.  Why leave people in limbo?  If you aren’t deporting them, give them a stake and roots – their kids are staying here as citizens anyway.

  4. Jerry Waszczuk

    Shut the Door”: A Senator Speaks for Immigration Restriction
    At the turn of the 20th century, unprecedented levels of immigration from Southern and Eastern Europe to the United States aroused public support for restrictive immigration laws. After World War I, which temporarily slowed immigration levels, anti-immigration sentiment rose again. CONGRESS PASSED THE QUOTA ACT OF 1921, limiting entrants from each nation to 3 percent of that nationality’s presence in the U.S. population as recorded by the 1910 census. As a result, immigration from Southern and Eastern Europe dropped to less than one-quarter of pre-World War I levels. Even more restrictive was the Immigration Act of 1924 (Johnson-Reed Act) that shaped American immigration policy until the 1960s. During congressional debate over the 1924 Act, Senator Ellison DuRant Smith of South Carolina drew on the racist theories of Madison Grant to argue that immigration restriction was the only way to preserve existing American resources. Although blatant racists like Smith were in the minority in the Senate, almost all senators supported restriction, and the Johnson-Reed bill passed with only six dissenting votes.

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