What Comes Next After Obama’s Major Immigration Loss At SCOTUS

The Supreme Court delivered a blow to President Obama’s efforts on immigration with a 4-4 vote on a major challenge to his 2014 executive actions granting deportation relief to some four million undocumented immigrants. The ruling — a single line noting that the tie defers to the appeals court decision that had upheld an injunction on the programs — means Obama will not be able to implement the programs by the end of his term and their fate is tied up with the presidential election.

But the decision is by no means the final word in the case or for the programs, known as DACA II (an expansion of the 2012 executive action that granted deportation relief to young immigrants who came to the US illegally as minors) and DAPA (which granted relief to certain undocumented parents of people with legal U.S. status). Immigration advocates were scrambling Thursday to assess their options, and the legal battle is likely to continue through the end of Obama’s term.

The case, U.S. v. Texas, is a lawsuit brought by 26 states challenging the Obama administration’s Department of Homeland Security Memo outlining the programs.

In Obama’s response to the Supreme Court’s decision, he signaled his administration would continue to obey the injunction on the programs, which was first put in place by U.S. District Court Judge Andrew Hanen, a conservative Texas judge who has shown notably hostility to the immigration actions. Obama added, however, that the ruling did not affect the administration’s longstanding enforcement priorities.

“This means that the people who might have benefitted from the expanded deferred action policies — long-term residents raising children who are Americans or legal residents — they will remain low priorities for enforcement. As long as you have not committed a crime, our limited immigration enforcement resources are not focused on you,” he said.

He reiterated that the original 2012 DACA program remains in place, as it was not being challenged in the current lawsuit.

As for the current case, the Supreme Court’s tie vote was just one step, albeit a devastating one, for the administration in its ongoing legal battle to implement its immigration policy.

Hanen had put in place a preliminary injunction on the programs in 2015, and a full hearing on the merits of the case against them is pending in his court. Immigration advocates now see as their best option a petition that the Supreme Court rehear the case it issued the tie-vote in Thursday when it has a ninth member and can come to a definitive decision.

“We call on the Department of Justice to seek a rehearing immediately,” Marielena Hincapié, the executive director of the National Immigration Law Center, said on a press call Thursday.

Given Senate Republicans’ blockade on Obama’s Supreme Court nominee, a rehearing, if granted, would still likely have to wait for a new president. But it could set the stage for a full court to return to the case without having to wait for it go back up the judicial ladder. It would also prevent Hanen from wreaking any more havoc with the case, from the perspective of immigration advocates.

(Since the initial injunction, Hanen has used the case to order ethical training for any DOJ lawyer who appears in a courtroom in the 26 states participating in the lawsuit. He also issued an order that the federal government provide the contact information of the undocumented immigrants who had renewed their enrollment in the original DACA program.)

“He’s clearly not positioned to hear this case in an impartial way. … It shows where he stands and there’s a serious question whether this judge can be impartial,” David Leopold, an immigration lawyer and former president of the American Immigration Lawyers Association, told TPM.

“This is an important enough case that the DOJ should not just take this 4-4 decision, they need to ask the Supreme Court for a rehearing when there is a ninth justice. What that will do is it will avoid the mess of it going to Hanen and have it heard by a full court,” he said.

The Department of Justice declined to comment when asked by TPM whether it was considering a rehearing petition. Nina Perales, MALDEF vice president of litigation who represented undocumented mothers who were able to intervene in the case, said her team planned on discussing the option with the DOJ.

“That’s obviously a conversation that we need to have once everybody has digested this and we get on the phone,” she said.

Outside advocates also floated the option of bringing a separate case in another circuit. That Hanen was able to block the program nationwide was a surprise, though the Fifth U.S. Circuit Appeals Court upheld his ability to do so.

“You could have individuals or you could have states themselves — California, New York — try to opt of this [nationwide injunction],” Leopold said. “There is a big question mark right now, tonight as to the validity of the nationwide injunction. This is an affirmance of Fifth Circuit by default, it is not a national precedent.”

Asked about the possibility of a lawsuit in a separate circuit, Hincapié said, “Everything is on the table at this point.”

“We believe it is our responsibility to look at every potential legal option,” she said

Perales, however, was skeptical of that alternative, arguing that it was more of a “longterm strategy.” She said that it would still take a year and a half to get a separate case to the Supreme Court

“What we do know right now is that the programs are not going forward on a nationwide basis. How to challenge that besides in the ways that we are doing in the case at hand?” she asked. “How you might do that with another case, it seems to me would require a decision by the Supreme Court, but I don’t really know. I haven’t explored that possibility because I am focused on the case in front of me.”