Millions of immigrant parents and their families lost in the misbegotten decision in U.S. vs. Texas. In a 4-4 tie, the Supreme Court returned the issue of their deportation status to the Brownsville, Texas, federal judge who had halted President Obama's latest "deferred action" orders in the first place.
The decision is a sad turn of events. It freezes Deferred Action for Parents of Americans and Lawful Permanent Residents, known as DAPA, and restores renewals of Deferred Action for Childhood Arrivals, or DACA, to just two years, instead of the proposed three years. These deferred action plans in various ways allow the “DACAmented” to stay in the U.S. without fear of deportation.
The original version of DACA, put in place by prosecutorial discretion in 2012, is not affected by this decision. It stands until Obama — or the next president — changes it. It has already been transformative: Nearly three-quarters of a million young people who came into the country illegally as children have been able to hold jobs, to pay into Social Security and to be "lawfully present" in the U.S. — a legal condition that in turn entitles them to driver’s licenses and other benefits in most states. DAPA would have extended similar protections and status to immigrant parents whose children are citizens or legal residents.
The tie vote means that four justices — unnamed but certainly the conservatives on the court — were willing to let stand the mean-spirited and nativist 5th Circuit Court of Appeals decision in response to a Texas lawsuit. The trial court enjoined DAPA, and the DACA renewal extension, when Texas challenged the president's discretionary authority on immigration matters. That authority has been held by all presidents since the Immigration and Naturalization Act of 1952. In our system, immigration is a federal responsibility, not one left to the states, so the Texas challenge, later joined by 25 other states, ignored long-established precedents. There is a real debate as to whether those states had the standing to sue — if they did, it implies that they might also be able to sue if, say, they didn't want to accept their fair share of Syrian refugees admitted into the country by treaty obligations.
Despite the setback represented by the court's decision, we must not rush to declare deferred action dead or overturned. The case returns to an unsympathetic judge, and to the treacherously conservative 5th Circuit, but there will probably be a full Supreme Court by the time the appeals court comes to another decision. Depending on who fills Antonin Scalia's seat, the full court may well pay more attention to precedent.
In any event, the narrow technical ruling on an injunction is not the same as a full-scale constitutional rejection of deferred action on its merits. For the time being, immigrant students eligible under the original DACA order can continue to seek its protection, and immigrant rights groups should continue their efforts to provide them with technical assistance and help with application fees. This group at least can come out of the shadows, and once out, they are likely to remain so. It will be difficult for any future president to unring this bell.
In the end, the deadlock in the court only underlines the pressing need for Congress to act on comprehensive immigration reform. The real malefactors on immigration aren't the Supreme Court justices, but the House and Senate. Among the conservative majority in Congress, there is a widespread political invocation of President Reagan to justify electoral aims. It was under Reagan's leadership that Congress passed the last major immigration legislation, the Immigration Reform and Control Act, 30 years ago. Anyone trying to lay claim to Reagan’s mantle should examine that legislative legacy.
The Supreme Court's decision is undoubtedly a tragedy for millions of immigrant families in the near term. Restrictionists have temporarily gained the upper hand. The justices have failed those families and left them in uncertainty. Yet when the case is fully considered on its merits, the outcome may well be positive for immigrant rights and presidential authority. Such a result would serve the national interest, given all we stand to gain by once and for all incorporating the undocumented, rather than demonizing them.
Michael A. Olivas is a professor at the University of Houston Law Center, where he teaches immigration law and higher education law. He is on leave as interim president of the University of Houston Downtown.
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