Immigration deadlock showcases shortcomings of short-handed court

Scholars worry about the ongoing effects of the nation’s partisan gridlock, which is now also affecting the branch of government that is supposed to remain above the political fray.

Beatriz Costa-Lima/AP
Activists stand in the middle of a road in Phoenix to protest a Supreme Court deadlock on immigration Thursday. The crowd carried signs in sweltering heat and chanted in Spanish and English.

Teeth-gnashing partisan gridlock has long thwarted any congressional action to address the issues surrounding the nation’s 11 million unauthorized residents and their families.

And now, a short-staffed United States Supreme Court – missing its ninth justice because of the Republican-led Senate’s stated unwillingness to hold a hearing during a presidential election year – was unable to offer any legal clarity on one of the most vexing matters confronting the country.

Deadlocked 4-to-4, the Supreme Court’s justices issued a terse, nine-word statement on Thursday, effectively throwing the Obama administration's immigration policies into a kind of legal and administrative limbo, many scholars say.

With its justices equally split and unable to render a decision, the high court left in place an injunction by a federal district judge in Texas, and later affirmed by the Fifth Circuit Court of Appeals in Louisiana, that blocked the Obama administration’s efforts to defer the deportations of up to 5 million unauthorized immigrants and give them permits to work.

Republicans hailed the 4-to-4 split that kept the Texas injunction in place, calling it a rebuke the president’s attempts to expand executive power and unilaterally alter the nation’s immigration laws. "This is another major victory in our fight to restore the separation of powers," House Speaker Paul Ryan said in a statement.

President Obama on Thursday called the deadlock “heartbreaking for the millions of immigrants who have made their lives here” and said it “underscores the degree to which the Court is unable to do its job.”

Indeed, some scholars worry about the ongoing effects of the nation’s partisan gridlock, which is now also affecting the branch of government that is supposed to remain above the fray of politics.

“In the political science 101 version of things, the Supreme Court is supposed to be this arbiter, and if you have some kind of issue between Congress and the president, the high court is supposed to make a decision for everyone to live with,” says Burdett Loomis, a professor of political science at the University of Kansas in Lawrence, and an expert on Congress.

With more and more conflicting rulings at the circuit court level, the Supreme Court’s role in an era of gridlock is only that much more important.

“Someone has got to make a decision, or else you have a Tower of Babel in American legal culture," says Patricia Minter, professor of American legal history at Western Kentucky University in Bowling Green.

Thursday’s Supreme Court announcement does not a set a precedent. And though the president’s official policy on immigration enforcement has been effectively blocked, it still doesn’t change the realities on the ground, some observers say.  

With some 11 million undocumented immigrants in the US, Obama has pointed out that it would be logistically impossible to deport everyone currently here illegally. “The reality is, in an era of dwindling resources, Obama cannot investigate every single one of these cases,” says Thomas Lee, a professor of constitutional law at Fordham Law School and expert on the Supreme Court. “But he still commands enforcement on the ground, so I think not too much is going to change at all. Obama was just trying to give blanket guidance for every single case, at a 30,000-foot level. It was the principle of the thing.”

With Congress unable to pass immigration reform, Obama implemented a policy to defer the deportations of undocumented immigrants who had been brought to the country as children in 2012, expanding it to the parents of citizens or legal residents in 2014. This would allow millions to “come out of the shadows,” the president said at the time. The measure also would have allowed them temporary work permits.

At the same time, however, many had called Obama the “deporter in chief,” since his administration had been expelling unauthorized immigrants at a pace never seen – a rate nine times more than two decades earlier, and outpacing the deportations of any previous president.

Still, 26 states, led by Texas, led the charge to sue the Obama administration for overstepping its authority, leading to the circuit court injunction in the Southern District of Texas placing the president’s executive actions on hold.

Scholars such as Kevin Johnson, dean and professor of public interest law at UC Davis School of Law in California, however, worry that the local ruling might “pave the way for perpetual immigration gridlock.”

The decision and appeals court affirmation could give states the power “to derail discretionary federal immigration enforcement decisions” and “could open the door to the use of litigation in the federal courts for partisan political ends in many controversial areas of law enforcement,” wrote Professor Johnson in a SCOTUSblog post earlier this year.

“And now this puts even more focus on the Supreme Court as a part of the presidential election,” says Professor Loomis at the University of Kansas. “So I do think that the Supreme Court decision today demonstrates how this kind of partisan gridlock opposition is affecting all of American politics.”

Others, however, see this as a temporary issue, even if the Senate doesn’t hold confirmation hearings for a ninth justice until next year, after a new president reaches office.

"At other times in US history, when the court was not as divided, having eight justices would not have been that big of a deal,” says Vikram David Amar, dean of the University of Illinois College of Law. “But today there are a lot of big issues that are really poised on a thin axis, with one justice pointing one way."

Even so, “having [an even number of justices] for one year is not a big deal,” Professor Amar continues. “It is suboptimal that the Supreme Court did not decide on immigration today, but when the court gets a ninth justice, the same type of issue will come back to the court and you'll have a new opportunity.... We don't have to worry, 'Oh we missed our chance to resolve that issue.' "

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