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The Weeds: when the Supreme Court split, who won? Hillary Clinton.

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The Supreme Court’s 4-4 split in the United States v. Texas case meant the block on President Obama’s executive action regarding immigration would not be removed soon. As of now, the case is in limbo — not actually the result of a definitive yes or no vote, meaning the block was not made permanent either. The way things stand, no one wins.

But maybe there is someone who stands to benefit from the judicial deadlock. Hillary Clinton can now campaign on the premise of finishing what was started and filling the vacancies in the judicial system.

In the latest episode of The Weeds, Vox’s Matt Yglesias, Ezra Klein, and Sarah Kliff discuss the ins and outs of the SCOTUS deadlock, including how it may be a blessing in disguise for the Clinton campaign.

To hear from the beginning of the SCOTUS discussion, start the podcast at 36:15.

A lightly edited transcript from the podcast is below:


Matt Yglesias: The Supreme Court today handed down an incredibly important non-ruling in which they said that they were split 4 to 4 on the appeal of a circuit court decision. The Obama administration did this big series of executive actions on immigration that provided semipermanent deportation relief to several million people who were living here illegally and was gonna create a process by which they could get work permits.

This struck a lot of people at the time as a violation of the norms [with] which this kind of executive authority had been used in the past. It had been done several times before but normally in pursuit of what you would call a foreign policy goal rather than immigration policy, per se — so like the Eisenhower and Kennedy administrations were similar with refugees from the Cuban Revolution, but it was a relatively small group of people and it was closely linked to the Cold War.

Ezra Klein: And there’s clear congressional opposition, like this is something they could have tried to pass but could not get passed.

MY: Right, and it wasn’t an emergency measure. So a circuit court ruled that this exceeded Obama’s authority and put a stay on the whole program. And then immigration advocates sued; it went to the Supreme Court, where I think they had been made cautiously optimistic that either Kennedy or Roberts would side with them. We don’t know exactly what the breakdown was on this, but one's guess is that it’s the normal 4-4 split that you would anticipate.

EK: With both Roberts and Kennedy voting with Thomas and Alito.

MY: This throws the whole program into a weird sort of limbo, because Hillary Clinton on the campaign trail had made promises to immigration advocates to do new orders that would go beyond what Obama had done.

So Obama says that what he did maximizes his legal authority. For sort of obvious political reasons, Hillary wanted to be able to say that, no, there’s more stuff that I’m gonna be able to do for you, because that’s how you make campaign promises, but it now puts her in the situation where even if she appoints a successor to fill the vacant seat, at least in a technical sense she can’t just say the same thing all over again.

It’s better, I guess, for liberals to have this 4-4 deadlock than an actual 5-4 decision that they need to ask for reversal of, but it also raises the prospect that you will have new lawsuits in other federal circuits where they think the judges may be more sympathetic to the immigrants’ side of this case. It would be very odd to have a circuit — you have circuit splits sometimes, but usually on arcane legal questions, not on basic issues about whether millions of people are allowed to live and work in the United States.

EK: I think that the one question I had about this going forward is to what degree this shows a strategy until the next president can name a judge — the strategy of choosing your circuit court to get a ruling you want and then being pretty certain you can get a tie. Because oftentimes Roberts or Kennedy, or all of them, they don’t want to make huge new laws, but a tie is a way to not have the program go forward but also doesn’t create a precedent where the whole thing is blown up. It creates, I think, an interesting question of, "What is the game theory of an extended eight-person Supreme Court?"

Sarah Kliff: Yeah, and what happens — if you’re an immigration advocate at this point, what is your play at this point? Because I think what you want to do is go to another circuit and work your way up through there, but you’re only working with, like, seven or eight months until a new administration, which kind of throws things into flux.

I think it’ll be interesting to see, like, if you’re an immigration advocate, do you just give up and say it didn't work and start plotting out what you want from Clinton, presumably as the candidate they are supporting and what you’d like to see from her administration? Or would you really throw your efforts in trying to save this? And knowing that if you do end up with a Trump administration, these executive actions are essentially out the window in January, so it’s possible you’re fighting for something that is about to be put on the chopping block.

MY: This also puts Obama personally in his least favorite position in the whole immigration debate, which is that as a president of the United States, he is responsible for the execution of the laws. Obama winds up taking crap from immigration advocates whose side he is ostensibly on because all these people are getting deported, and he’s taking crap from the border control because he’s constantly telling people to not do their jobs.

Commercially it’s great for Hillary Clinton who can now just be like, "So you guys really have to vote for me. I’m going to appoint a new Supreme Court justice. I’m gonna stop this bullshit deportation that Obama is doing." Right? It’s really easy, whereas in a way, if Obama’s thinking got forward, it would have put Clinton in the awkward position of saying she’s gonna do more stuff but it’s not clear how. Whereas now she is very clear.

EK: It is impossible to imagine a situation in which, given what we tend to think we know about Hispanic election turnout, where the stars could be aligning more favorably for Hillary Clinton, because we had a huge, huge, huge Hispanic turnout. Donald Trump, this immigration decision — I mean, there’s really a lot here. I think you’re right that from a political standpoint, this is sort of the ideal situation for her.


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