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Supreme Court Could Deadlock on Obama's Immigration Plans

By Casey C. Sullivan, Esq. on April 18, 2016 | Last updated on March 21, 2019

The Supreme Court heard oral arguments on President Obama's immigration reform plan today. Under Obama's immigration plan, Deferred Action for Parents of Americans, millions of immigrants could be spared deportation and given a path to lawful status. Twenty-six states, led by Texas, have sued to halt it, arguing that the plan is beyond the president's power.

At oral arguments, the eight-justice Court seemed evenly divided along ideological lines. That raises the prospect of a deadlocked, equally divided non-decision in one of the Court's most important cases of the year.

"That's Just Upside Down"

President Obama's immigration reform plan grew out of the collapse of legislative immigration reform efforts in 2013 and would halt the deportation of millions of immigrants.

Under DAPA, a program created by executive action alone, undocumented immigrants who have lived in the country since 2010 and have children who are American citizens or permanent residents would be given "deferred action" status, allowing them to stay and work in the country without fear of deportation. Instead of targeting parents and families, immigration enforcement would be focused on deporting felons.

But that action, the states argue, exceeds the executive branch's authority. Their arguments seem to have swayed Justice Kennedy and Chief Justice Roberts as well.

When questioning whether the president can defer deportations without congressional approval, Justice Kennedy said "that is a legislative, not an executive act." By inverting the two, "It's as if the president is defining the policy and Congress is executing it. That's just upside down."

Chief Justice Roberts was also critical of the administration. The government's arguments seemed to indicate that the president could simply stop all deportations in total, regardless of what Congress has instructed, he said.

Liberals Take a Stand on Standing

On the other side of the bench, several of the Court's liberal justices focused on standing. Texas had argued that it had standing to challenge the DAPA program because it issued licenses to DAPA beneficiaries; the cost of issuing those licenses is enough of an injury to support the suit, according to the state.

But, as the government noted repeatedly, Texas chooses to issue the driver's licenses. It is not required to. Justice Breyer seized on that argument, noting that if states were allowed to create their own injury for standing, a flood of litigation could be unleashed.

Likely Outcome: A Limited Opinion, or No Precedent at All

When the Supreme Court agreed to hear the challenge in January, we described the decision as one that would ensure that the Court would "play a major role in the debate over immigration in America," and potentially raise constitutional issues well beyond the scope of DAPA and immigration. A controversial decision, whatever the outcome, would come in the middle of an election season already heavily focused on immigration -- helping to rally bases and sway the political debate.

That was then.

Now, with just eight justices, the Court is likely to issue a much more limited decision, if it can muster any majority at all. A ruling on standing, for example, would allow the Court to avoid significant constitutional issues around the separation of powers and the role of the executive branch. It's an approach that might seem tempting to Chief Justice Roberts.

For opponents to the program, however, a deadlock would be an appealing alternative. Should the Court split 4-4, its decision would have no precedential effect. But it would leave in place the Fifth Circuit's ruling enjoining the DAPA program nationwide, leaving millions of immigrants in legal limbo.

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