High court deals big setback to Obama immigration plan

A tied Supreme Court today blocked President Barack Obama’s executive order that would have allowed 4.3 million undocumented immigrants to have temporary “lawful presence” in the United States.

House Speaker Paul Ryan, R-Wis., hailed the decision.

“The Constitution is clear: The president is not permitted to write laws—only Congress is,” Ryan said. “This is another major victory in our fight to restore the separation of powers.”

Obama, responding to the ruling, said he issued the executive order because he was “left with no choice” after Congress didn’t take action on immigration reform.

Presumptive Democratic presidential nominee Hillary Clinton has said she would resurrect Obama’s plan, which could get another hearing in the future before a nine-justice court. Presumptive Republican presidential nominee Donald Trump has said he would deport all 11 million undocumented immigrants in the country—a massive use of executive power in the other direction that potentially has its own constitutional problems.

A tie vote at the high court affirms the lower court decision. In this case, the 5th U.S. Circuit Court of Appeals ruled against the immigration plan as an overreach of executive power. The Supreme Court ruling simply read, “The judgment is affirmed by an equally divided court.” Had Justice Antonin Scalia lived, the Obama administration likely would have had an even bigger, precedent-setting loss from a 5-4 decision.

Typically a circuit court ruling only applies to the states within the circuit, but because this is an immigration case—and immigration rules must be uniform across the country—the 5th Circuit’s ruling applies to the entire nation.

At issue is the executive action that created a program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA would have allowed undocumented immigrants who are a low priority for deportation and meet several other requirements to claim a “lawfully present” status. The program required candidates to have a son or daughter who is a U.S. citizen or permanent resident.

DAPA status “does not confer any form of legal status in this country, much less citizenship” according to the Department of Homeland Security (DHS), but would have allow those individuals to get identification, work permits, and access some public benefits, like Medicare. Deferred Action for Childhood Arrivals (DACA), a related program not challenged in this lawsuit, gave lawful status to undocumented immigrants who arrived as children.

States balked at DAPA, saying Obama’s action was an abuse of executive power and that he was not enforcing the current laws enacted by Congress (a constitutional provision known as the “Take Care Clause”). Twenty-six states filed lawsuits. Texas argued it faced millions of dollars in extra costs just for state-subsidized driver’s licenses. The 5th Circuit ruled in Texas’ favor, blocking the Obama administration’s plan in 2015.

DHS has discretion to prioritize who it deports because it doesn’t have the resources to address the estimated 11 million undocumented immigrants in the country. The agency typically deports about 400,000 people a year. The Obama administration argued DAPA was a form of that agency discretion, providing temporary status to those who are not priorities for removal. But the 5th Circuit ruled DAPA goes beyond agency discretion by giving immigrants some form of status and access to benefits without congressional approval.

The U.S. Conference of Catholic Bishops, the Mennonite Central Committee, and the National Latino Evangelical Coalition, along with other faith groups, filed an amicus brief on the side of the Obama administration in this case. They argued the agency had discretion to set up this kind of plan in the interest of promoting stable families.

The Supreme Court hasn’t set a national precedent with this ruling but it effectively ends the Obama administration plan. The case could come again before a new Supreme Court, but not while Obama is president—putting even more weight on an already weighty presidential race.