The Supreme Court Just Thwarted Obama’s Plan For Immigration Reform

Obama’s dreams for leaving a legacy on immigration reform have been dashed.

The President’s 2014 executive order, “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA), expanded protection from deportation to the parents of “Dreamers” — undocumented people born outside the United States, but raised here from childhood — who were granted protection through 2012’s “Deferred Action for Childhood Arrivals” (DACA).

But today, in particularly anti-climactic fashion, Chief Justice John Roberts announced that the eight members of The Court split 4–4 on the challenge Texas and 25 other states had brought against the DACA expansion, which claimed that the president’s order had overstepped the bounds of executive power through Homeland Security and infringed on states’ rights. By not coming to a majority decision in United States v. Texas, the court has left in place the nationwide injunction on President Obama’s critical order.

Under the DACA+/DAPA, up to 4.5 million immigrants could have applied for protection from deportation, allowing them to work and attend school legally in the United States. The U.S. Dept. of Homeland Security describes the executive orders this way:

“On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several guidelines may request consideration of deferred action for a period of two years, subject to renewal. They are also eligible for work authorization. Deferred action is a use of prosecutorial discretion to defer removal action against an individual for a certain period of time. Deferred action does not provide lawful status.”

According to SCOTUSblog’s Amy Howe, however, “the enforcement of the Obama administration’s 2014 deferred-action policy remains blocked by a nationwide injunction. It is now up to Judge Hanen in Brownsville, Texas, [where the case originated] whether and how to go forward with the trial on the merits.”

A later appeal on the Supreme Court’s decision is expected. So if Hillary Clinton won in November and she revived Obama’s program and was able to push through confirmation for a ninth SCOTUS justice and said justice cast a fifth vote in support of lifting the injunction against the DAPA, Obama’s immigration policy could be resurrected. (One can safely assume, though, the vocally anti-immigrant GOP nominee would not revive a program his party considers to be unearned amnesty.)

According to Eric Citron at SCOTUSblog, the Obama administration could be optimistic and seek a rehearing, but that seems unlikely, as this is still just a preliminary injunction pending the lower court’s final decision.

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It bears clarifying that, as The Court’s most senior reporter Lyle Denniston wrote in December, the president was hardly offering people citizenship with his executive order — and the qualifications to apply for protection were rather narrow:

“Under the administration policy, nearly five million undocumented immigrants — many of them parents of young people who came to the country illegally in childhood — will be able to qualify for delayed deportation. That would not put them on a path to citizenship, but it would enable them to stay in the U.S. for perhaps five years, to get driver’s licenses, and to qualify for some other public benefits.” [emphasis mine]

Those public benefits include basic needs like seeking health care, renting apartments, attending college (which requires documentation and therefore status), and safely navigating checkpoints in places like Texas. The city of Brownsville is located on the border with Mexico, at the very southern-most tip of the state — which means traveling north requires passing through a heavily guarded check-point.

Because the lower court’s affirmed judgment is tied to the current administration, the future of immigration reform — delayed deportation or any other program — is not affected. A new president and new congress will not be prevented from enacting new laws and policies, especially as the next president will likely be appointing Justice Antonin Scalia’s replacement, filling the vacancy that prevented a majority opinion.

That said, as reported yesterday in an article at The Los Angeles Times, not everyone can take comfort in the limited scope of today’s ruling: “While the ruling is not expected to directly affect original deferred action recipients, many nevertheless worry that it could,” wrote Molly Hennessy-Fiske. “Many also have family and friends who could be hurt if the court overturns the extended deferred action for young immigrants or the parents’ program.”

Hennessy-Fiske spoke with several people gathered in Houston on the anniversary of the DACA as they anticipated the high court’s ruling. Today’s affirmation of the Fifth Circuit’s judgement leaves them and millions of families in limbo and likely cements Obama’s place in the history books as having deported more immigrants than any other president.

But activists do not plan on waiting for additional action from the lower court, a new president, or a ninth justice to be confirmed to keep fighting for their humanity to be recognized and their rights to be cemented in law.

As Monica Simpson, Executive Director of the National Women of Color Reproductive Justice Collective SisterSong said in a statement this morning:

“What was also made clear today is that immigrant families will not just stand by and wait. We must keep fighting to halt deportations, to truly address the incredible failings of our current system and to do all we can to keep families together.”

Those who are unsure of their status or eligibility can join United We Dream’s community call TONIGHT at 7 p.m. EST (English) and 8 p.m. EST (Spanish) breaking down the ruling.

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Chief Roberts guarantees opinions for the three remaining cases — Voisine v. US, Whole Woman’s Health v. Hellerstedt, and McDonnell v. US — will be announced on Monday morning at 10:00 a.m. EST. Read our introduction to SCOTUS Decision Season here.

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Lead image: flickr/Susan Melkisethian