In an election year when enforcement of the nation’s immigration laws has been a topic of constant controversy, advocates of strict enforcement will surely be cheered by the announcement today that the Supreme Court will not reconsider its position -- a 4-4 deadlock resulting in no decision -- on President Obama’s executive actions related to illegal immigrants. But if they expect to see a wave of deportations follow in its wake, they will likely be disappointed.
The decision lets stand a lower court ruling that found President Obama’s efforts to create a quasi-legal status for certain illegal immigrants -- the parents of US citizens and green card holders as well as an expanded category of illegal immigrants brought to the US as children. The “deferred action” program that Obama attempted to put in place would have allowed those who qualified to identify themselves and work legally in the US without fear of immediate deportation.
“The Supreme Court’s refusal to take this up on a rehearing it doesn’t do anything different than the original failure to reach a decision did,” said Benjamin Johnson, executive director of the American Immigration Lawyers Association. “The injunction still stands.”
But while the court’s decision will certainly make the provision of work permits to those immigrants, as Obama had proposed, illegal, it does nothing to change the fact that the administration probably isn’t going to significantly ramp up its deportation program as a result.
That’s because the administration has the well-established authority to set priorities for federal law enforcement agencies, and the existing set of policies regarding how it prioritizes deportation cases are designed to focus on dangerous or criminal aliens rather than, for example, manual laborers raising US-born children.
That is not to say that none of those the administration sought to protect will face deportation, though.
“Deportations can and will take place of people who would otherwise be eligible for this program,” said Johnson. “There are some people who will definitely fall through the cracks...and will find themselves in removal proceedings.”
Ironically, that’s partly because of a decision made by the same administration that is trying to protect them.
Johnson said that the Obama administration’s move to prosecute people for the crime of “illegal entry” at higher rates than the Justice Department has in the past gave many immigrants whose only legal violation was crossing the border criminal records -- automatically making them a higher priority target for deportation than they would otherwise have been.
However, the decision on Monday doesn’t herald the arrival of the “deportation force” that Republican presidential nominee Donald Trump has promised to put in place if he is elected in November.
In a statement, Texas Attorney General Ken Paxton, who took the lead in the suit filed by 26 different states, said, The State of Texas’ position has been validated by the U.S. Supreme Court today as they denied the Obama administration’s petition to rehear the immigration case. Rewriting national immigration law requires the full and careful consideration of Congress. This is the latest setback to the president’s attempt to expand executive power and another victory for those who believe in the Constitution’s separation of powers and the rule of law.”
The Justice Department, which had requested the rehearing, said in a statement that it is considering its options for moving forward. At this point, no final decision is likely until a ninth Justice is appointed to fill an empty seat on the court created by the death of Antonin Scalia. The President’s nominee, Merrick Garland, has been denied a vote by Republicans in the Senate.
One way or another, though, Johnson of AILA said, the case isn’t over. “There is no question that this...is going to find its way back to the Supreme Court.”