Supreme Court deadlocks on landmark Obama immigration plan

By Lomi Kriel

Updated 9:44 am, Thursday, June 23, 2016

A short-handed U.S. Supreme Court on Thursday reached a 4-4 split on President Barack Obama's landmark 2014 immigration plan, upholding a lower court's ruling that blocks the administration from giving temporary work permits to some 4 million immigrants in the country illegally and delaying their deportation.

The tie, the result of conservative appointee Justice Antonin Scalia's February death in West Texas, is a defeat for the Obama administration. It doesn't, however, set a precedent, allowing for a renewed challenge once the court is at full strength. A future president could also try a similar initiative.

The decision comes in the midst of a divisive presidential campaign in which immigration has been a defining issue, propelling Donald Trump to the top of the Republican ticket as its presumptive nominee.

The court itself is embroiled in a political battle to fill Scalia's seat, and his absence has caused it to reach a tie at least twice. Many experts think the justices didn't want to decide a case with such hugely consequential questions absent a full bench.

The plan, announced by Obama in November 2014, would have been one of the most sweeping changes to the country's immigration laws since President Ronald Reagan legalized 2.7 million immigrants in 1986. It comes after Congress has remained stuck for more than a decade on what to do with the 11 million immigrants here illegally.

The 2014 initiative would have applied to nearly one-third of them, the immigrant parents of American citizens or legal residents who have been here since at least 2010 without committing major crimes. It would also have expanded a similar 2012 program granting provisional work authorization to certain youth who came here illegally as children.

Both are based on a long-standing legal concept called deferred action that allows the government to defer deporting certain immigrants and temporarily permit them to work. It has, however, never been granted to so many immigrants at once.

The government contends it's only setting priorities for whom it must deport given that Congress allocates just $6 billion a year for enforcement. That's enough to annually remove roughly 400,000 immigrants who are in the United States illegally.

Texas and the 25 plaintiff states that sued to block the initiative don't disagree that the president has wide authority over whom to remove. But they argue the plan is too broad, giving a blanket grant of ''lawful presence" to millions of immigrants rather than deferring their deportations on a narrow case-by-case level.

They say the president ignored administrative procedures for changing rules and that Texas would suffer by having to give the immigrants driver's licenses. The state subsidizes the cost of each document by some $130.

Critics said Texas could increase the price for the license and that the cost would also be offset by greater taxes if the immigrants are allowed to work here legally.

Allowing states to sue simply because they don't like federal programs opens the floodgates to challenge any policies they disagree with that are clearly under the purview of the federal government, said Steve Vladeck, an American University Washington College of Law professor who specializes in the Supreme Court.

Chief Justice John Roberts, a George W. Bush appointee, has in particular held narrow views on when states can challenge the federal branch. He wrote the dissenting opinion in a 2007 Supreme Court decision allowing Massachusetts to contest the Environmental Protection Agency's refusal to regulate vehicle emissions linked to climate change.

The state argued that rising seawater - a result of global warming - would hurt it by eroding its coastline, giving it sufficient claim to sue. But Roberts said the state could not prove it was injured by the government's policy, described standing as "a fundamental limitation ensuring that courts function as courts, and not intrude on the politically accountable branches."

When the Supreme Court accepted the Texas case, the full bench added a provocative question: Whether the president's action violated the constitution by not fully enforcing immigration law and trying to deport all immigrants here illegally.

Many legal experts think Scalia, who died in February, added that directive. Without him, the court appears to have had little appetite to tackle such a consequential issue and possibly set a far-reaching precedent.

The original 2012 initiative, known as deferred action for childhood arrivals or DACA, has not been challenged and remains in effect. About 713,300 youth have qualified for permits under this plan and experts say it's lifted their earnings and enabled more to obtain health insurance and higher education.