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3 winners and 4.5 million losers from the Supreme Court’s immigration deadlock

Making sense of the court’s non-decision decision.

Barack Obama sad (Nicholas Kamm/AFP/Getty Images)

Most of the time, when the Supreme Court rules in a case, the meaning of the opinion is pretty clear: It’s right there in the text. But when the Court deadlocked in the immigration case United States v. Texas on Thursday, it issued a one-sentence slip opinion: "The judgment is affirmed by an equally divided Court."

But it was a damn influential sentence. The Supreme Court’s split effectively kills President Obama’s 2014 proposals to allow 4.5 million immigrants to apply for protection from deportation and work permits. It vindicates Senate Republicans’ strategy of holding the court at eight members after the death of Justice Antonin Scalia. And it raises the stakes of the presidential election in November.

Here’s who the court’s non-decision helps — and who it hurts.

Winner: Mitch McConnell

When Scalia died in February, Senate Republicans took a gamble: They decided to block Obama’s moderate and qualified nominee, Merrick Garland, and hold the seat open for the next president to fill.

Mitch McConnell

In the long run, they may have rendered the federal government even more dysfunctional by further eroding one of the most important remaining Senate norms. Even in the medium run, they may have chosen poorly: Senate Republicans might not like the justices a President Donald Trump would nominate — and if the 2016 race continues as it has, they’ll never get the chance to find out anyway.

But for now, the Court’s non-decision in United States v. Texas is a huge victory for them. It’s the first major case since Scalia’s death that has gone the way Republicans wanted but would have gone the other way had Garland been on the Court.

It’s fitting that United States v. Texas ends in politics, because it’s always been a political case — even more so than most. It’s a lawsuit brought by most of the country’s Republican governors against its Democratic president (with many of the country’s Democratic governors lining up behind him). It’s a battle over a program President Obama agreed to implement after years of pressure from immigrant activists (and years of insisting he couldn’t do anything).

The bad news for Republicans: The non-decision, if anything, makes the stakes of the presidential election higher, and the presidential election isn’t looking great for them. Trump is trailing in the polls. Hillary Clinton has promised to go further than Obama on granting relief to unauthorized immigrants, and with a Clinton-appointed ninth justice she would almost certainly get her way.

But because Republicans' delaying tactics succeeded this time, they’ve proven that it can be possible — and effective — to hold court vacancies open as a way to stall the other party’s president. That makes it a lot more likely they’ll do it again.

Senate Republican leadership Chip Somodevilla/Getty

Winner: Judge Andrew Hanen

The Supreme Court may have spoken (or rather, failed to speak), but United States v. Texas isn’t actually over. A final ruling hasn’t been issued in the case. The opinions issued at the lower court level, which the Court just allowed to stand, have been preliminary injunctions, issued while the courts consider the merits of the case.

As the public waits for a final ruling, attention in the case returns to where it began: the court of Judge Andrew Hanen in the Southern District of Texas.

It’s pretty much a foregone conclusion that Hanen will side with the states and rule to kill Obama’s immigration actions once and for all. The coalition of states that sued the Obama administration after he announced his executive actions in 2014 deliberately picked the Fifth Circuit Court of Appeals (and the Southern District) as an ideologically amenable court to start their case.

Hanen’s initial ruling against the administration, in early 2015, was relatively narrow and technical. Then it came out that the federal government had been renewing the deferred action status of immigrants covered under President Obama’s initial 2012 action for three years (per his 2014 announcement) instead of the original two. (The Obama administration says it was a misunderstanding, stemming from the fact that the 2012 deferred action program wasn’t part of this case; conservative critics view it as a deliberate violation of Judge Hanen’s order.)

At that point, Hanen got mad.

This May, he released an order punishing the Department of Justice for its supposedly unlawful behavior. He ordered literally any Department of Justice lawyer who appears in any court in any of the 26 states suing the administration in the immigration case to report to him for five years for ethics oversight. He also ordered the federal government to give him a list of all the immigrants in those states who got three-year renewals of their deferred action status — including their names, addresses, and other personal information.

Hanen’s order has been put on hold pending a hearing in August. But the 50,000 immigrants who would be on Hanen’s list now have to worry about getting judicially doxxed. What the case will look like by the time it leaves Hanen’s court — and what the Fifth Circuit, whose ruling on the injunction was more hostile to the administration than Hanen’s was, will do on appeal — are not at all clear.

Winner: Hillary Clinton

On some level, it’s always perverse to declare someone a "winner" for political reasons when she was actually on the losers’ side — it gives the impression that person cares more about his or her own political prospects than the people who are actually affected. But while Hillary Clinton wouldn’t say that the non-decision in United States v. Texas is good news for her — and likely doesn’t think it is — it very well could be.

As much as some Democrats and progressives have been raising a stink about the Supreme Court vacancy, they haven’t had something particular to complain about since Justice Scalia’s death. Just as United States v. Texas vindicates Senate Republicans’ strategy, it vindicates Democrats’ case that the Supreme Court needs nine members to function — and that Democrats need to be the ones appointing the ninth justice. President Obama made this very point after the ruling.

If Democrats had to have a setback in this Supreme Court term to dramatize the stakes of the election, this was certainly the one that might do the most to mobilize key voters. Millions of Latino voters know unauthorized immigrants; in some cases, eligible voters are the siblings or children of immigrants who would have qualified for Obama’s abortive immigration programs.

immigration protest gop

Not only will they have the chance to vote against a man who wants to deport all unauthorized immigrants (and maybe their children) from the US, but they will have the chance to vote for a candidate who’s promised to fix the situation that prevented their parents or siblings from applying for relief.

Clinton has also promised to grant relief to more immigrants than Obama even tried to — a promise that looks a little harder to keep right now. This might cause problems for her with advocates (at least if she’s elected and has to follow through). But it might make it a little easier for her to push back.

When President Obama told immigration advocates he didn’t have the authority to do what they were asking, it was just his own opinion (and the opinion of his White House) — so they didn’t take no for an answer. If President Clinton uses the difficulty of passing DAPA through the courts to argue that she can’t keep her promises, she might be more successful at getting advocates (at least moderate, establishment ones) off her back.

Loser: Barack Obama

President Obama has deported 2 million immigrants over his eight years in office. That’s not the legacy on immigration he wanted.

Obama has spent most of his time in office trying to impose some sort of control on a government deportation regime that’s more bulked up than it’s ever been in US history, without the help of legislative immigration reforms. In theory, he’s wanted to deport unauthorized immigrants who commit crimes (or have just arrived in the US) while allowing long-resident families to stay. That’s a balance he’s never quite managed to strike.

immigration protesters

In his first term, he erred on the side of harshness — setting records by deporting 400,000 immigrants a year. In his second term, after comprehensive immigration reform stalled in Congress in 2013, he attempted to build on the success of his 2012 deferred action program with DACA+ and DAPA.

Had he succeeded, he would have protected more immigrants than he’d ever deported. But the Supreme Court has just undone that attempt, resetting Obama’s immigration legacy to where it was at the end of his first term: with millions deported and only 700,000 protected (under the 2012 deferred action program).

Over the past few years, the administration has quietly and quickly curbed deportations. But the shadow of Obama’s "deporter in chief" years hangs over his presidency.

Loser: 4.5 million immigrants and their families

An estimated 4.5 million immigrants had been waiting on the Supreme Court’s decision to find out whether they’d be able to seek protection from deportation and work legally in the US, and the Supreme Court has just told them they can’t.

The opportunity cost is huge.

The evidence from DACA, which has protected about 700,000 immigrants for the past three and a half years, indicates this is a very real loss. Three-quarters of DACA recipients had been able to get better-paying jobs, 30 percent had gone back to school, and 59 percent said they could help support their families. There's evidence that DACA helps keep immigrants integrated into American life — instead of losing interest in school or career because they feel their immigration status holds them back.

Those are opportunities that their older counterparts will never be able to get through DACA+, and that millions of parents of people like them will never be able to get through DAPA.

Jose Patino of Arizona cries as he watches President Obama in 2014. Ethan Miller/Getty

The immigrants who would have qualified for DACA+ and DAPA aren’t likely to be deported now that they’ve been barred from getting relief. The Obama administration maintains that long-resident unauthorized immigrants, and especially parents of US citizens, are extremely low priorities for deportation (as long as they don’t have criminal records). But the entire reason that DACA+ and DAPA were invented to begin with is that what the White House sees as a "low priority" may not be a low priority to the agents in the field.

The threat of deportation is still there. It hangs over the US citizen kids of immigrant parents — "U.S.-citizen children who live in families under threat of detention or deportation will finish fewer years of school and face challenges focusing on their studies," one advocacy group has found. It clouds the future of their entire families. And it’s not going away anytime soon.


CORRECTION: This article originally said that Judge Hanen's order would cover 100,000 unauthorized immigrants. It would only cover the members of that group who live in the states suing the Obama administration: so, likely, more like 50,000.


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