Return to Sender: Immigration Policy After Supreme Court Ruling

Last month millions of undocumented immigrants were left in legal limbo when a divided U.S. Supreme Court let stand a lower court ruling that had blocked President Barack Obama’s executive action on immigration. Obama called the 4 to 4 vote “frustrating” and “heartbreaking.” He also rebuked Congress over the pervasive gridlock that has stymied meaningful immigration reform and led to his decisions to use executive actions to bring legal relief to the undocumented population.

Here in Los Angeles, the court’s decision, which rebuffed the federal government’s challenge to the 5th U.S. Circuit Court’s appellate ruling in the case of United States v. Texas, was denounced by the Mexican-American Legal Defense and Education Fund’s (MALDEF) president and general counsel, Thomas Saenz, who had helped argue the case before the high court.

“I think the decision was shameful,” Saenz told Capital & Main. “It’s a shameful example of the politicization of our court system.”

MALDEF received legal standing in the case after it began representing three intervenors – three Jane Doe mothers who live in the United States without documentation and also have U.S.-citizen children.

“Texas and the other states are acting out their political disagreements with the Obama administration in court, at the expense of the immigrant population,” Saenz said.

At the heart of this case were Obama administration decisions to use executive orders to institute two programs to help undocumented but otherwise law-abiding immigrants, by reducing deportation threats and enabling them to work here legally.

The first program began in 2012, when Obama issued an order creating the Deferred Action for Childhood Arrivals (DACA) program. It was aimed at noncitizens who came to the U.S. before the age of 16, and have lived in the country for at least five years. DACA allows individuals meeting that criteria to step forward, pass a legal background check, pay a fee, apply for the program and if they are approved, get a work permit that must be renewed every two years.

“Young people who apply and are accepted can stay in the country legally, and it protects them against deportation,” explained Angelica Salas, executive director of the Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA). “But you must be at least 15 years old to apply.”

CHIRLA provides low- and no-cost legal assistance to young people applying to the DACA program. Salas said the fees paid by DACA enrollees are close to $500 and must be paid every time their DACA status is renewed.

However, DACA does not provide any legal protections to undocumented parents, pointed out Alvaro Huerta, a staff attorney at the National Immigration Law Center (NILC) in Los Angeles.

“Parents of DACA enrollees can be deported if they are here illegally,” Huerta said. NILC attorneys, including Huerta, worked on a friend of the court (amicus) brief filed as part of the government’s appeal.

In 2014, Obama issued his second executive order, creating the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.

This program would have protected many of the estimated five million undocumented parents of U.S. citizens and legal residents by shielding them from deportation, while enabling them to pass a background check, pay a fee and apply for a three-year work permit.

The 2014 executive order would also have expanded the DACA program.

“It would have removed the age cap,” Salas said. “Right now you have to apply for DACA before you reach 31. It would also have eliminated the total cap on applicants, which was about 800,000 nationwide. And it would have enabled DACA recipients to get three-year work permits instead of two-year ones.”

The new executive order was scheduled to take effect in February 2015, but Texas filed suit, claiming it would suffer a serious financial injury because the state subsidizes driver’s licenses and the creation of DAPA and expansion of DACA would cause Texas to massively increase those subsidies. Texas also accused the Obama administration of unconstitutional executive overreach, alleging the two immigration policies violated a federal law that sets forward procedures for how federal agencies establish regulations.

The U.S. government vehemently challenged the issue of drivers license subsidies, claiming the Texas subsidies were voluntary. It also argued that immigration regulations were the purview of federal authorities, and the federal government had a right to issue regulations related to its discretionary enforcement of its deportation powers.

The case was initially filed on behalf of Texas and 16 other states in U.S. District Court in Brownsville, Texas; eventually nine more states signed on, for a total of 26.

United States v. Texas would eventually be heard twice by a three-judge panel in 5th U.S. Circuit Court of  Appeals, and twice the U.S. government lost 2-1. The Obama administration could have requested a hearing before the full 5th Circuit but pressure was mounting to get the case to the Supreme Court because the end of the administration was in sight.

And now the Supreme Court’s deadlock has affirmed the injunction without setting any precedent, which means the case can be heard again. In the meantime, it will likely be returned to sender. Saenz and Huerta both lamented the fact that the Supreme Court tie vote provided no direction to the lower courts on how to proceed.

So where do things go from here? It appears the battle to lift the lower court’s injunction will be fought on two fronts.

On a political level, Huerta said, progressive groups – particularly immigrant rights organizations — need to redouble their efforts to get out the vote this November, put more pressure on Congress to enact a comprehensive immigration reform bill, elect a new Congress and help get millions of lawful permanent residents to apply for citizenship, so they can begin voting and flex their political muscle.

On the legal front, Saenz said that the U.S. government and MALDEF have until the middle of July to file a motion for a rehearing before the Supreme Court.

Saenz said discussions are underway between the case’s parties, and either side can request the rehearing, but no decision has been reached.

If a rehearing is requested and accepted by the Supreme Court, it would effectively freeze the case in place and nothing would happen until the court takes action.

“And who knows how long that would be?” Saenz said. “The court works at its own pace.”

Even if the court agreed to a rehearing, according to Saenz, the earliest it could happen would be during the court’s next session, in October.

“But since this court decision ended in a tie, it doesn’t make sense to have a rehearing until a new justice is confirmed, and that’s unlikely until after the election in November,” Saenz said, referring to a future replacement for Associate Justice Antonin Scalia, whose death last February set the stage for the court’s current ideological stalemate.

In the meantime, the case will probably land back in Texas. There, the government and MALDEF can petition to have the original judge reverse himself, which again is unlikely.

Otherwise, the case could be settled by a summary judgment or a trial, and that decision would then be appealable back to the 5th Circuit and start the process all over again.

What could make a real difference, Saenz said, is if one of the 26 states that is now a plaintiff in the suit withdraws from the case, or if another state that is not part of the suit, like California, petitions the court to become an intervenor in the case, and if granted, then petitions to be exempted from the nationwide injunction.

“Citizens can petition California’s governor and attorney general to join the suit as an intervenor in conjunction with the federal government and MALDEF,” Saenz said. “But it’s going to take a lot of conversation and some pressure to make that happen.”