“The judgment is affirmed by an equally divided Court.”
So said the Supreme Court in the closely watched immigration decision of United States v. Texas et al., issued today. And that is all they said, no less, no more.
The final vote is no surprise—I thought a 4-4 outcome was the most likely one, as did many. However, the complete absence of any opinion surprises me a bit. The Court was presented with four separate issues, and there clearly were divided opinions on each of these, based on the questions asked in oral argument. Where is the split decision on the issues? The indignant Alito opinion? The fiery Ginsburg response? Apparently, silence prevails, until this Court is full.
So then: what happens, when nothing happens?
Deferred Action for Childhood Arrivals, aka DACA, lives on. Deferred Action for Parents of Americans, aka DAPA, does not go forward. Also, DACA is not expanded, as proposed in the Executive Action.
The good news is DACA as currently constituted continues. We need a DREAM Act, to help all those kids, who are now adults in many cases. It is graduation season, and once again we are hearing stories of undocumented valedictorians, sports stars, and aspiring soldiers, all who grew up here. There is cruelty in leaving major social issues like immigration unaddressed, over the course of generations. Dreams do crash. It is also dangerous for society to have large groups living in the shadows. DACA helps at least some in this regard. DAPA would’ve helped more.
Many see the Supreme Court decision as a loss for immigrants, and it is, insofar as the Court did not approve the White House’s programs. However, let’s be realistic here. It is highly unlikely that Justice Scalia, a leading conservative on the bench, would’ve voted for the United States on this one. Further, the stalemate suggests that Justice Roberts and Justice Kennedy, two possible swing votes, were unpersuaded by the Administration’s arguments. We can deduce this since we can be pretty sure that Justices Sotomayor, Kagan, Ginsburg, and Breyer voted for the U.S. With no decision, the door is wide open for a future appeal, if circumstances dictate.
Another point: the stalemate leaves open a bit the question of whether the Court found standing in the matter. Standing was a big argument raised by the U.S., and Justice Breyer in oral argument actually made some hay, saying that giving standing here would open the door for all sorts of lawsuits by states against the federal government, whenever states are unhappy with a federal action. The stalemate is probably not a comment on the standing question, but rather just a statement that the Justices are evenly split, and so by the rules of the Court, the lower Court decision is affirmed. Another way to see this is four justices found standing. Interesting.
The Court also expressly asked the litigants to address the issue of whether the President was violating the “Take Care” clause of the Constitution, which requires the President to faithfully execute the laws of the land. The no-decision in this case fails to address this issue, despite the Court’s apparent pro-active interest, leaving the scope of the Executive Branch’s power in immigration matters no further defined. This may be a good thing, particularly in case of a Trump election, given his comments about how he’d exercise authority in the White House.
Of course, the biggest thing that happens when nothing happens is the U.S. continues to need immigration reform, and need it bad. This effort rightfully falls principally upon Congress, though President Obama may have won some political capital for the Democrats by at least trying.
Onward. The 2016 election race just got another issue. Trump will use the decision to highlight the importance of the next Supreme Court nominee. So will Clinton. And they will both be right.