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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

 

Supreme Court, Split 4-4, Blocks Obama Immigration Plan

Supreme Court, Split 4-4, Blocks Obama Immigration Plan

The U.S. Supreme Court on Thursday dealt President Barack Obama a harsh defeat, splitting 4-4 over his plan to spare millions of immigrants in the country illegally from deportation and give them work permits, leaving intact a lower-court ruling blocking the plan.

The court, with four conservative justices and four liberals, appeared divided along ideological lines during oral arguments on April 18 in a case brought by 26 states led by Texas that sued to block Obama’s 2014 executive action on immigration that bypassed Congress.

The 4-4 ruling was possible because there are only eight justices following February’s death of conservative Antonin Scalia.

Obama’s plan was tailored to let roughly 4 million people – those who have lived illegally in the United States at least since 2010, have no criminal record and have children who are U.S. citizens or lawful permanent residents – get into a program that shields them from deportation and supplies work permits.

The court did not issue a ruling on the merits of the main legal question. Therefore, its action set no legal precedent to bind future presidents. The decision indicates that any major immigration policy change that would address the long-term situation of the estimated 11 million people in the country illegally would have to be enacted by Congress.

This was not the first time that the Supreme Court determined the fate of an important Obama initiative. The justices in 2012 and 2015 issued high-profile rulings preserving his signature healthcare law that Republicans have long fought.

Obama Immigration Program, Blocked By Texas Judge, Wins 14 States’ Support

Obama Immigration Program, Blocked By Texas Judge, Wins 14 States’ Support

By Joseph Tanfani, Tribune Washington Bureau (TNS)

WASHINGTON — Fourteen states are joining in the push to salvage President Barack Obama’s plan to grant legal protection to millions of people in the U.S. illegally — even if it’s only revived in their parts of the country.

A federal judge has frozen the immigration program while a lawsuit filed by Texas and 25 other states proceeds. Those states, mostly led by Republican governors, contend Obama is forcing their taxpayers to pick up the financial burden for millions of immigrants.

Now, 14 mostly Democratic-led states — some with the highest populations of immigrants eligible for Obama’s program — are presenting an alternative argument: They say allowing immigrants some protections would actually benefit them, in the form of increased tax revenues and stronger families.

Lawyers for these states and the District of Columbia filed a brief Thursday arguing that a federal appeals court should lift the lower court’s order — or at least limit its effect to Texas and perhaps the other 25 states that are also suing.

“A single state cannot dictate national immigration policy,” the states wrote in their legal argument, filed in the 5th U.S. Circuit Court of Appeals in New Orleans.

The filing, part of a legal strategy coordinated with the Obama administration, cements a political rift between red and blue states on the president’s executive action. It also signals an effort by the immigration plan’s supporters to sustain momentum while the program is held up in court.

Justice Department lawyers also asked the appeals court Thursday for an emergency ruling that would allow the program to go forward, saying that the lower-court judge’s decision halting it was “unprecedented and wrong.”

The motion says states have no business interfering in the federal government’s job to enforce immigration laws. Allowing the decision to stand would hurt the Department of Homeland Security’s ability to police the border, the appeal says, by preventing authorities from concentrating on deporting criminals.

The dispute is probably headed to the U.S. Supreme Court, and the administration is trying to move the case along quickly — and to get the program up and running while Obama is in office. It asked the appellate court for a decision on the stay within 14 days and for arguments on the constitutional issues in the case to be held by June.

Announced last year, Obama’s plan would grant a three-year protection from deportation to up to 5 million people living in the country illegally. The largest piece, called Deferred Action for Parents of Americans, would offer three-year work permits to parents of U.S. citizens or other legal residents. It wouldn’t be open to recent arrivals or to people with serious criminal records.

In the friend-of-the-court brief, California, New York, Illinois and the other states say that giving temporary legal status to millions of immigrants will have “far-reaching” benefits to local economies, by allowing people to earn higher salaries and pay taxes.

The majority of immigrants eligible for what the administration calls “deferred action” live in those states: California, with 1.5 million, New York, with 338,000, and Illinois, with 280,000. Texas has the second-highest number of eligible immigrants, with 743,000, according to estimates by the Migration Policy Institute.

The left-leaning Center for American Progress says that Obama’s program could increase California’s tax revenues by $904 million over five years, and that Texas could get an estimated $338 million.

“With over 1 million hard-working Californians eligible … our state has a major stake in the successful implementation of the president’s immigration actions,” state Attorney General Kamala Harris said in a statement.

U.S. District Judge Andrew S. Hanen froze the program nationwide based on Texas’ claim that the program would force them to incur costs by issuing drivers licenses to immigrants. The federal government and their allied states call that claim bogus, but say that even if the injunction stands, it should only apply to Texas, or the other states that oppose the program.

“There is no basis for forcing the injunction on us,” California and the states say in their brief.

The competing arguments from warring states underscore the point that only the federal government should decide questions of immigration and national security, immigration attorney David Leopold said.

“For states to stick their noses in it really is a violation of all notions that we have about how to run this country,” he said.

Some experts say it’s not likely the courts would allow the program to go forward only in parts of the country.

“If what they are doing is unlawful, it doesn’t make sense to allow them to do it in some states and not others,” said Josh Blackman, a professor at the South Texas College of Law, who filed a brief in the case supporting the coalition led by Texas.

Aside from the legal questions, it likely would be a logistical nightmare to only partly open the deferred action program. Applicants are to mail in paperwork that would be processed at a center in Virginia.

“In practice, it would be hard to have a program in some states and not other states,” said Marc Rosenblum, a deputy director at the Migration Policy Institute. “It’s just a little hard to imagine how that would be enforced, since no one is checking where these people live.”

Photo: President Barack Obama receives a standing ovation as he takes the stage to discuss college affordability and access to quality higher education at Georgia Tech on Tuesday, March 10, 2015, in Atlanta.   (Curtis Compton/Atlanta Journal-Constitution/TNS)

Obama Order Could Mean Refund Checks For Immigrants In U.S. Illegally

Obama Order Could Mean Refund Checks For Immigrants In U.S. Illegally

By Kevin G. Hall, McClatchy Washington Bureau (TNS)

WASHINGTON — President Barack Obama’s executive order on immigration will allow people who’ve been working in the country without documents to retroactively file tax returns for the past three years and collectively get about $1.7 billion in refundable tax credits over ten years.

It’s a little known consequence of the executive order on immigration announced shortly before Thanksgiving, and whose implementation is presently held up in the courts.

Republican lawmakers are scrambling to pass legislation that would limit the ability of the workers to file tax returns for years before their immigration status changed under the executive order and qualify for a tax refund that on average for other taxpayers has been about $2,300 per person.

Under Obama’s executive order, eligible workers would be given Social Security numbers, and that would allow them to work legally while the order is in effect. They could file a 1040 tax return, or amended returns for three years previous — the statute of limitations for amending a tax return — and potentially qualify for the refundable Earned Income Tax Credit.

“Those who were working illegally in the United States shouldn’t be rewarded for doing so,” Senator Charles Grassley (R-IA) said in a statement to McClatchy. “That would have the effect of allowing retroactive benefits. My proposal would prohibit those granted deferred action from claiming the EITC for any year they were working without authorization in the United States.”

McClatchy obtained an estimate by the congressional Joint Committee on Taxation, done for Grassley and Senate Finance Committee Chairman Orrin Hatch (R-UT). It shows the additional EITC refunds under the program could cost taxpayers $1.7 billion over 10 years, almost all of it in the first five years.

Obama’s immigration order overall is actually expected to bring in almost $20 billion in new revenue over a ten-year period after implementation, according to the nonpartisan Congressional Budget Office. That’s because new immigrants would be paying into Social Security and having taxes withheld from paychecks.

Repealing the order would add to projected deficits. But allowing previously undocumented workers to quickly collect a government check for a time when they weren’t here legally is hardly a good optic for Obama and Democrats.

The Earned Income Tax Credit was created to help move individuals off of welfare rolls and into employment. It provides a tax benefit to low-income earners based on what they actually earn. It is “refundable,” meaning workers who have no federal income tax liabilities get the balance of the credit in a check from the government.

Allowing the new immigrants to apply retroactively for the EITC is similar to green card holders being able to seek the credit when they get a Social Security number, as is the case now.

The Internal Revenue Service recently reviewed guidance dating to 2000 and upheld that the determining factor on getting the Earned Income Tax Credit refund is a Social Security number, not immigration status.

“The rationale is, if you were in the country and there is some process in which you become legal, we want to go ahead and treat you as if you were legal the whole time,” said Elaine Magg, a senior research associate for the nonpartisan Tax Policy Center, jointly run by the centrist Urban Institute and center-left Brookings Institution.

What Republicans blast as “amnesty bonuses” are also akin to what political refugees can now do under tax law — amend previous tax returns once their immigration status has changed.

But Grassley maintains Congress explicitly closed this avenue to undocumented workers in 1996 and argues that this is being ignored by the IRS.

“If we want these folks to be citizens then we give them Social Security numbers, and they are subject to the same tax laws others are subject to, and in some cases that will mean they will get the refundable credit,” said Maag, calling the issue easily fixable if Congress wants to restrict the ability to retroactively claim the tax breaks afforded in Obama’s executive order.

Bills already have been introduced in the House of Representatives and the Senate to do just that.

Undocumented workers presumably have been working off the books or with falsified documents. They will have to present proof that they were paid or were self-employed over the previous three years. If they were using a false taxpayer ID number, they could now amend returns for the past three years and plug in their new Social Security number.

The IRS could audit these returns to guard against fraud, but because the tax returns involve very low income levels, the IRS would not get much bang for the buck with such audits.

The Joint Committee on Taxation estimate is based on a model of expected behavior and not past actions, given that there hasn’t been a similar situation on which to build a best guess. It also does not estimate how many of the undocumented immigrants might have changed to legal status anyway through marriage or other avenues.

Photo: 401(K)2013 via Flickr