A deadlocked Supreme Court has effectively squashed any chance of significant immigration reform before President Obama leaves office in January. On June 23, a 4–4 vote by the justices left in place an injunction blocking Obama’s plan to shield from deportation millions of undocumented immigrants whose children are U.S. citizens or legal residents. The plan would also have allowed those immigrants to apply for work permits. The court’s decision returned the issue to U.S. District Judge Andrew Hanen, who in February blocked the program from going into effect nationwide while he considers a challenge from 26 states led by Texas, which objects to paying associated costs.
The estimated 3.6 million undocumented immigrants who would have qualified under the program, known as Deferred Action for Parents of Americans, remain in limbo. So do their employers. Business groups submitted two amicus briefs in support of DAPA to the Supreme Court.
Bob Donegan, president of the Seattle-based restaurant chain Ivar’s, joined one of the briefs. When he began using the government’s E-Verify system to check employees’ immigration status in 2014, Donegan learned that 109 of his 1,200 workers were undocumented. “There were people who had worked for us for 20 years,” he says. “These people are great employees. We know their kids. We know their parents. It is not fair for these people not to be included in having the right to work.” He let them go but offered to cover their lawyers’ fees if they applied for residency. Nine have since gained legal status and come back to Ivar’s. Says Donegan: “Every one of the nine has been promoted into a management job, and we have another 30 pending.”
The Obama administration has until late July to petition the court for a rehearing, but it hasn’t indicated whether it will. Hanen has scheduled a status conference with lawyers for Aug. 22, after which he’s expected to set a timetable for hearing the case in his Brownsville, Texas, courtroom. That will open the next phase of wrangling over the fate of about a third of the estimated 11 million undocumented immigrants in the U.S.
Congress has spent more than a decade debating immigration reform. It has repeatedly failed to pass legislation and has showed no appetite to try again before the November election.
No one expects the Obama administration to succeed in persuading Hanen to let DAPA proceed. The judge, an appointee of President George W. Bush, has sparred with Justice Department lawyers, even barring some from representing the government in this case. He’s said he may order Justice Department attorneys making court appearances in any of the states that are part of the DAPA lawsuit to take mandatory ethics classes. Hanen has also indicated he may force the federal government to hand over the names, addresses, and other contact information for thousands of people who signed up for an earlier Obama program, Deferred Action for Childhood Arrivals.
Federal courts have allowed DACA, which gives some undocumented immigrants who came to the U.S. as children protection from deportation, to move ahead despite repeated challenges. DAPA supporters could challenge Hanen’s nationwide injunction against it in other, more liberal circuits, like the Ninth, which covers California. “One could imagine that there will be judges in other parts of the country that don’t think it’s proper for law for the entire country to be set by a single district court judge,” says Brianne Gorod, chief counsel for the Constitutional Accountability Center, a public-interest law firm and think tank in Washington.
If Hanen rules against DAPA, the Obama administration could appeal the decision back up to the Supreme Court. Yet the case could stretch into next year, and regardless, the bench will likely remain split until a ninth justice is appointed to fill the seat left vacant by the death of Justice Antonin Scalia. Senate Majority Leader Mitch McConnell has refused to confirm anyone until a new president is sworn in. “You have a serious case with huge national impact that the court could not decide based on staffing issues, basically,” says David Leopold, former president of the American Immigration Lawyers Association.
Hillary Clinton has pledged to proceed with DAPA if she’s elected and would be expected to nominate a liberal justice to Scalia’s seat. Clinton’s likely opponent, Republican Donald Trump, called DAPA “one of the most unconstitutional actions ever undertaken by a president” and has said he’d deport undocumented immigrants if elected.
Although the immigrants directly protected by DAPA can’t vote, their U.S. citizen children can. “For the community that is impacted by this, it is life and death,” says Ben Monterroso, executive director of Mi Familia Vota, which registers Latino voters. He says young people are becoming particularly engaged in this year’s election: “If they don’t have parents at risk of being deported, they have friends and relatives who are.” After the Supreme Court opinion was released, activists blocked a thoroughfare in downtown Phoenix. Four were arrested.
Some advocacy groups are urging the White House to do what it can now in the absence of DAPA, including curbing border raids and allowing more migrant detainees to post bond. Says Marisa Franco, a Phoenix community organizer who last year co-founded Mijente, a Latino advocacy group: “If there is no relief, then the administration shouldn’t be throwing the book at immigrants.”
The bottom line: The fate of a program to deal with millions of undocumented immigrants in the U.S. probably won’t be determined before the election.