Millions of Undocumented Immigrants Affected by Deadlocked Supreme Court

by Leslie Anne Mendoza, J.D. Class of 2017 Touro Law Review Senior Staff Member

“The judgment is affirmed by an equally divided Court.”[1]

These nine words have crushed the dreams of more than four million undocumented immigrants facing threats of deportation.[2] On June 23, 2016, in U.S. v. Texas,[3] the deadlocked United States Supreme Court with eight sitting justices affirmed the decision of the Fifth Circuit Court and effectively blocked President Obama’s immigration plan.[4]

The Fifth Circuit case, Texas v. U.S.,[5] involved an appeal to a preliminary injunction that hindered the implementation of President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”).[6] Texas and twenty-five other states challenged DAPA’s validity under the Administrative Procedure Act (“APA”) and Article II § 3 of the Take Care Clause of the Constitution.[7] The twenty-six states urged that DAPA violated the requirements of APA as the statute required notice-and-comment rulemaking.[8] The states also claimed that the President violated his constitutional duty to “take care that the laws be faithfully executed.”[9]

DAPA was an extension of the Deferred Action for Childhood Arrivals program (DACA) implemented by the Department of Homeland Security.[10] Under both programs, undocumented children and their parents who meet the criteria set forth in the DACA and DAPA memoranda would be allowed to legally remain in the United States.[11] Pursuant to DAPA, 4.3 million out of 11.3 million undocumented immigrants would have been eligible to gain legal status and work permits in the United States.[12]

The Supreme Court tie blocked President Obama’s immigration plan that was to be one of his “central legacies.”[13] President Obama expressed his disappointment and remarked that the inability of the Supreme Court to decide was a consequence of the Republican senators’ refusal to review his nominee to fill the ninth seat.[14] Following Justice Antonin Scalia’s death, President Obama nominated D.C. Circuit Judge Merrick Garland to fill the recently vacated seat.[15] Republican senators, however, refused to review his nomination due to the upcoming presidential elections in November.[16] Chairman of the Senate Judiciary Committee, Senator Chuck Grassley, made the statement, “it [has] been standard practice that Supreme Court nominees are not nominated and confirmed during a presidential election year.”[17] According to Grassley, the American people should be allowed to decide whom to elect as the new president and accordingly fill the vacant seat of the Supreme Court.[18]

If Judge Garland’s nomination would have been heard and confirmed on time, the Supreme Court could have decided the case with a full bench.[19] There is a strong likelihood that Garland would have decided in favor of the Obama administration.[20] This would have resulted in a 5-4 vote and a reversal of the Fifth Circuit’s decision.[21] Nonetheless, the 4-4 vote sets no precedent and a renewed challenge to the plan is still allowed once a ninth justice is appointed to break the tie.[22]

[1] U.S. v. Texas, 136 S.Ct. 2271, 2272 (2016).

[2] Texas v. U.S., 809 F.3d 134, 148 (5th Cir. 2015), aff’d per curiam, 136 S.Ct. 2271 (2016).

[3] 136 S.Ct. 2271 (2016).

[4] Id. at 2272.

[5] 809 F.3d 134.

[6] Id. at 146.

[7] Id.

[8] Id. at 149; 5 U.S.C. § 553 (LEXIS through PL 114-219).

[9] Texas v. U.S., 809 F.3d at 149; U.S. Const. art II § 3.

[10] Texas v. U.S., 809 F.3d at 147.

[11] Id.

[12] Id. at 148.

[13] Haeyoun Park and Alicia Parlapiano, Supreme Court’s Decision on Immigration Case Affects Millions of Unauthorized Immigrants, N.Y. Times (June 23, 2016), http://www.nytimes.com/interactive/2016/06/22/us/who-is-affected-by-supreme-court-decision-on-immigration.html?_r=0 (last visited September 19, 2016).

[14] Remarks, President Barack Obama, Remarks by the President on the Supreme Court Decision on U.S. Versus Texas (June 23, 2016), https://www.whitehouse.gov/the-press-office/2016/06/23/remarks-president-supreme-court-decision-us-versus-texas [hereinafter Remarks on U.S. v. Texas] (last visited September 23, 2016).

[15] Remarks, President Barack Obama, Remarks by the President Announcing Judge Merrick Garland as his Nominee to the Supreme Court (March 16, 2016), https://www.whitehouse.gov/the-press-office/2016/03/16/remarks-president-announcing-judge-merrick-garland-his-nominee-supreme (last visited September 23, 2016).

[16] Press Release, Sen. Chuck Grassley, Grassley Statement on the Death of Supreme Court Justice Antonin Scalia (Feb. 13, 2016), http://www.grassley.senate.gov/news/news-releases/grassley-statement-death-supreme-court-justice-antonin-scalia (last visited September 23, 2016).

[17] Id.

[18] Id.

[19] Remarks on U.S. v. Texas, supra note 14 (noting that a Supreme Court nomination for the past 40 years has an average time period of a little over two months between the nomination and a hearing and since President Obama nominated Judge Garland three months before the U.S. v. Texas decision, Judge Garland could have been the ninth justice to break the tie).

[20] Adam Liptak, Larry Buchanan, and Alicia Parlapiano, How a Vacancy on the Supreme Court Affected Cases in the 2015-16 Term, N.Y. Times (June 27, 2016), http://www.nytimes.com/interactive/2016/02/14/us/politics/how-scalias-death-could-affect-major-supreme-court-cases-in-the-2016-term.html (last visited September 23, 2016).

[21] Id.

[22] Remarks on U.S. v. Texas, supra note 14.

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