One sentence. That was the result of nearly 20 months of litigation, thousands of pages of briefing from hundreds of interested parties, capped with extended oral arguments by extra advocates.
One sentence: “The judgment is affirmed by an equally divided court.” This is where U.S. v. Texas, and with it the Obama administration’s most ambitious administrative effort on immigration, stand now. That sentence means that the lower court decisions blocking the immigration initiative from taking effect will remain in place.
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Back in January, when the Supreme Court agreed to hear the case, the justices asked for argument on four questions — on whether the states suing the federal government had standing to sue (had they been harmed?); on whether the policy had followed the proper procedure when it was issued; on whether immigration law allowed the president to act as he had; and on whether he had in fact violated the constitutional injunction to “take care that the law be faithfully executed.”
When it came to oral arguments, only eight members were on the court — and only two of the four questions received any real attention. Justices asked sharp questions about standing — about whether states should be able to bring suit at all. And they considered the shape of the Immigration and Nationality Act and how much discretion the president has to shape its enforcement priorities.
[interstitial_link url=”https://www.washingtonpost.com/news/monkey-cage/wp/2016/01/21/the-supreme-court-asked-four-questions-about-obamas-immigration-initiative-the-last-one-is-key/”]The Supreme Court asked four questions about Obama’s immigration initiative. The last one is key.[/interstitial_link]
But when it came to its deadlocked outcome, the court did not answer any of its questions. It would appear that the more liberal judges could not convince their more conservative brethren that Texas and its allies had no grounds for a lawsuit. Nor could the skeptics win a majority for the view that the administration’s interpretation of the law had gone too far. Nor could a compromise be crafted — for instance, around the notion that the presidential choice not to deport someone was acceptable but could not be combined with affirmative benefits associated with “lawful presence” in the United States.
Instead, the case bounces back to the lower courts — first, back to Texas and the courtroom of U.S. District Court Judge Andrew Hanen. None of the courts that have heard the case so far has ruled strictly on its substance but rather on procedural points, and the Supreme Court’s non-decision does not change that. Nor does the 4 to 4 split set a precedent binding circuits other than the one (the 5th Circuit) that has already heard the case.
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If this is a victory for the separation of powers, as congressional Republicans are declaring, it is a victory largely by default.
Of course, as the Canadian rock philosopher Neil Peart and his colleagues quite correctly declared, “if you choose not to decide / you still have made a choice.” Judge Hanen has made little secret of his feelings on the merits of the case. His original decision centered on the question of whether the policy should have gone through a process of public comment, but he is very unlikely to find for the government on the broader substance of the policy. (Nor are the administration’s hopes buoyed by Hanen’s ongoing feud with Justice Department lawyers.)
The 5th Circuit Court panel that upheld the district court injunction added its own skepticism about the legality of the policy. Neither court had serious doubts about the states’ standing in the case. So it seems very unlikely either will endorse the program when considering substance rather than process.
For proponents of the Obama plan, then, that leaves — the Supreme Court. The Supreme Court may yet answer its own questions, after the case works its way back through the judicial system.
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But that will not happen soon — certainly not in the time in office remaining to Obama. And it involves a lot of ifs — if Hillary Clinton wins the presidency, if she continues to push the program, if she is able to win confirmation of a ninth justice supporting an executive-friendly interpretation of immigration law.
And if, of course, Congress continues to avoid dealing with immigration. After all, moving the debate over the law to the legislative branch would be the real win for the separation of powers.