Supreme Court Ties On Immigration — Would Merrick Garland Have Made A Difference?

Supreme Court Ties On Immigration — Would Merrick Garland Have Made A Difference?

Today’s Supreme Court 4-4 deadlock decision on President Obama’s immigration executive order further proves that, as Justice Ruth Bader Ginsburg previously said, eight “is not a good number.”

The case was centered around the undocumented parents of legal U.S. citizens and residents that would have been shielded by one of Obama’s executive decisions on immigration – the Deferred Action for Parents of Americans and Lawful Permanent Residents executive order, or DAPA

The high court’s non-decision in United States v. Texas holds a lower court’s decision against DAPA, leaving as many as 5 million undocumented immigrants unprotected from deportation and unable to be legally employed in the U.S. DAPA allowed for the parents of American citizens, who had lived in the country for at least five years and had not committed felonies or repeated misdemeanors, to apply for work permits.

A panel of the U.S. Court of Appeals for the 5th Circuit ruled 2-1 that the president’s order was more than an executive decision not to enforce existing law. Rather, they said, it created new authority where the president had none. The Supreme Court, in tying their vote, left the decision with the lower court.

Essentially, there has been no change in the law; these undocumented immigrants will remain in limbo. President Obama said in a press conference after the decision was announced that this administration would continue not to enforce immigration law on “low-priority” undocumented Americans.

Soon after President Obama announced the plan in 2014, 26 states, lead by Texas, argued in court that it violated the limits of Obama’s executive power and surpassed procedures for rule changes. The program was shut down by a federal judge in 2015 pending the case’s resolution. The United States Court of Appeals for the Fifth Circuit in New Orleans later upheld the action.

“For more than two decades now our immigration system, everybody acknowledges, has been broken,” Obama said shortly after the court’s announcement. “And the fact that the Supreme Court wasn’t able to issue a decision today doesn’t just set the system back even further, it takes us further from the country that we aspire to be.”

Since the Obama presidency will soon be over, it is unlikely the program will legally materialize before then. The future of millions of undocumented immigrants is in the hands of the next president, and despite Donald Trump’s alarming candidacy, Senate Republicans are set on keeping Antonin Scalia’s now-vacant seat empty by refusing to consider Merrick Garland’s nomination.

Senate Republicans lead by Mitch McConnell vowed to refuse to vote on a new justice the very same day Justice Scalia died. The Supreme Court has been stuck on the sidelines, often choosing to return cases to lower courts, punting important decisions until Scalia’s seat is filled.

in April, Justice Elena Kagan said the court is now  “especially concerned” about achieving consensus. “All of us are working hard to reach agreement.”

Justice Scalia kept the court leaning right, and his seat’s vacancy has given more power to the left.

Back in May, the New York Times gave examples of this:

Four days before he died, the court blocked the Obama administration’s effort to combat global warming by regulating emissions from coal-fired power plants. The vote was 5 to 4, with the court’s conservatives in the majority.

Just three weeks later, in a significant victory for the Obama administration, Chief Justice Roberts refused to block a different regulation limiting emissions of mercury and other toxic pollutants from coal-fired power plants.

And last Thursday, a deadlocked court refused to vacate a stay of execution of an Alabama man, Vernon Madison, with the court’s four conservatives saying they would have let the execution proceed. Had Justice Scalia lived, Mr. Madison would almost certainly have died.

Garland could very well have been the 5th vote against Obama’s executive order. In turn, Hillary Clinton, who is leading Trump in general election polls, could choose a more Liberal Justice than Garland, who is a well-known moderate and perhaps the best option Republicans could have gotten from Obama. What excuse could the senate have, then, to not give the nominee a vote?

The presumptive Democratic nominee weighed in on the court’s non-ruling: “Today’s heartbreaking ‪#SCOTUS immigration ruling could tear apart 5 million families facing deportation. We must do better.”


Photo: Standing in front of the U.S. Supreme Court, Senate Democratic leader Harry Reid (C) calls for Senate Republicans to move forward with hearings for Obama’s Supreme Court nominee Merrick Garland in Washington March 17, 2016.  REUTERS/Kevin Lamarque



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