“The judgement is affirmed by an equally divided court.” With one sentence, the Supreme Court refused to engage in the question of the President’s authority to extend deferred action to the parents of U.S. citizens (DAPA) and additional young people who entered the U.S. as children (expanded DACA). By affirming the judgement, the Court let the injunction against DAPA and expanded DACA stand, dashing the hopes of millions that there would be the ability to work legally in the U.S. and to receive some form of relief from the threat of removal. President Obama will be unable to implement these programs before he leaves office in January 2017. Meanwhile, deportations will continue, Congressional deadlock will reign supreme, and Americans and immigrants will suffer the consequences.
It is important to note what is not covered by this:
- First, people who have DACA or deferred action do not need to worry that they can not renew their DACA designation. The injunction did nothing to change, pause, eliminate or otherwise affect the original 2012 DACA.
- Second, it does not affect the ICE priorities memo, which indicates that those who might otherwise qualify for DAPA or DACA are not a priority for removal. ICE should exercise its discretion not to pursue removal efforts against most potential DAPA or expanded DACA would-be beneficiaries.
There is plenty of blame to go around. We can start with the President, who waited and waited until the clock ran out. The President continually put politics over people, selected a program of minimum ambition and employed a half-baked legal strategy to defend it. The administration seemed to be caught off guard by the decision of 26 states to challenge its use of executive authority in this manner. Of course, those 26 states, led by the zealots in the governor’s mansion and attorney general’s offices of Texas, chose a path of harming their states and bear a lot of the blame. Instead of trying to expand the political community and economic opportunities for the residents of their states, the 26 states chose a path of exclusion and small-mindedness that will, hopefully, have long term repercussions for their politicians. In addition, Congress’ repeated efforts to block sensible immigration policies and lowest common denominator approach to politics created this situation. The palpable hatred for immigrants in the U.S. Congress created a roadblock to any meaningful legislative change. This also includes Congress’ failure to confirm a ninth justice, who might have been a fifth vote in favor of turning over the injunction. Finally, let’s not leave the Supreme Court off the hook. This issue needed resolution and the Supreme Court punted and refused to engage.
The path forward looks daunting. It is hard to find any silver lining from this deadlock. Later this week, we will discuss steps that the President could take before he leaves office. However, for now, we still have plenty of legal tools at our disposal such as parole, provisional waivers, cancellation of removal, asylum, and many other options. We will continue to use those tools we have and continue to push for justice for all those who have been let down by the political system in the U.S.