In the much-watched immigration case challenging the president’s executive actions, a divided Supreme Court last month essentially called “time out” in a close sporting event and returned the ball to Congress to pass meaningful immigration reform.
Immigrant rights advocates expressed disappointment. Commentary about the case, United States v. Texas, focused on the implications for the power of the president vis-à-vis Congress over immigration regulation and what the case means for President Barack Obama’s immigration legacy.
With the 4-4 ruling, the Supreme Court left intact a lower court injunction barring the implementation of a highly controversial immigration initiative of the Obama administration.
For more than a decade, Congress has debated immigration reform, without making progress. Most recently, in 2013, the Senate passed a compromise immigration reform package with a bipartisan group of sponsors known as the “Gang of Eight,” which included prominent Republican Sens. Lindsay Graham, John McCain and Marco Rubio.
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Besides bolstering immigration enforcement and tinkering with legal immigration, the reform package would have offered a path to earned legalization to eligible undocumented immigrants in the United States. The Republican leadership of the House of Representatives blocked a vote on the bill and it died.
With Congress stalemated and many Americans, particularly Latinos, pushing for immigration reform, Obama acted to the extent that he could. In 2014, he announced the Deferred Action for Parents of Americans (DAPA) program for the undocumented parents of U.S. citizens and lawful permanent residents. It built on the Deferred Action for Childhood Arrivals (DACA) program, which was implemented in 2012 and provided temporary relief from deportation to undocumented young people.
A form of prosecutorial discretion routinely employed by government in law enforcement, “deferred action” means simply that the U.S. government will not seek to remove immigrants who have established eligibility for that relief. Temporary in nature and revocable at the will of the president, deferred action is not a path to legalization or citizenship. And it should not be mistaken as some kind of “amnesty.”
The Republican leadership of Texas and 26 states did not agree with the Democratic administration’s policy choices. In an action that arguably did not satisfy what is known as “standing” required by the Constitution to sue in federal court, the states sued in a court in South Texas and persuaded the court to issue a nationwide injunction barring implementation of DAPA.
Fortunately, although allowing the injunction to remain intact, the divided Supreme Court – presumably split along partisan ideological lines – did not create precedent that will open the door for states to pursue political litigation in the future.
Even if the Supreme Court had upheld the Obama programs, Congress would still have needed to address immigration reform. Deferred action does not offer durable relief for undocumented immigrants, which can only be provided by Congress. Ultimately, what began as a political question will return to the political arena after the Supreme Court’s “non-decision” in United States v. Texas.
As the frequent immigration salvos of the apparent Republican presidential nominee Donald Trump make clear, American immigration politics can be deeply divisive. That unquestionably is the case when it comes to immigration reform.
The debate will return to Congress. Bolstered enforcement, reforms to the legal immigration rules and a path to lawful status for some undocumented immigrants are needed. Each aspect of immigration reform raises thorny political questions that require careful deliberation and rational discourse.
Kevin R. Johnson is dean of the University of California, Davis School of Law and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies. Contact him at firstname.lastname@example.org.