by Leslie Anne Mendoza, J.D. Class of 2017 Touro Law Review Senior Staff Member
“The judgment is affirmed by an equally divided Court.”[1]
These nine words have crushed the dreams of more than four million undocumented immigrants facing threats of deportation.[2] On June 23, 2016, in U.S. v. Texas,[3] the deadlocked United States Supreme Court with eight sitting justices affirmed the decision of the Fifth Circuit Court and effectively blocked President Obama’s immigration plan.[4]
The Fifth Circuit case, Texas v. U.S.,[5] involved an appeal to a preliminary injunction that hindered the implementation of President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”).[6] Texas and twenty-five other states challenged DAPA’s validity under the Administrative Procedure Act (“APA”) and Article II § 3 of the Take Care Clause of the Constitution.[7] The twenty-six states urged that DAPA violated the requirements of APA as the statute required notice-and-comment rulemaking.[8] The states also claimed that the President violated his constitutional duty to “take care that the laws be faithfully executed.”[9]
DAPA was an extension of the Deferred Action for Childhood Arrivals program (DACA) implemented by the Department of Homeland Security.[10] Under both programs, undocumented children and their parents who meet the criteria set forth in the DACA and DAPA memoranda would be allowed to legally remain in the United States.[11] Pursuant to DAPA, 4.3 million out of 11.3 million undocumented immigrants would have been eligible to gain legal status and work permits in the United States.[12]
The Supreme Court tie blocked President Obama’s immigration plan that was to be one of his “central legacies.”[13] President Obama expressed his disappointment and remarked that the inability of the Supreme Court to decide was a consequence of the Republican senators’ refusal to review his nominee to fill the ninth seat.[14] Following Justice Antonin Scalia’s death, President Obama nominated D.C. Circuit Judge Merrick Garland to fill the recently vacated seat.[15] Republican senators, however, refused to review his nomination due to the upcoming presidential elections in November.[16] Chairman of the Senate Judiciary Committee, Senator Chuck Grassley, made the statement, “it [has] been standard practice that Supreme Court nominees are not nominated and confirmed during a presidential election year.”[17] According to Grassley, the American people should be allowed to decide whom to elect as the new president and accordingly fill the vacant seat of the Supreme Court.[18]
If Judge Garland’s nomination would have been heard and confirmed on time, the Supreme Court could have decided the case with a full bench.[19] There is a strong likelihood that Garland would have decided in favor of the Obama administration.[20] This would have resulted in a 5-4 vote and a reversal of the Fifth Circuit’s decision.[21] Nonetheless, the 4-4 vote sets no precedent and a renewed challenge to the plan is still allowed once a ninth justice is appointed to break the tie.[22]
[1] U.S. v. Texas, 136 S.Ct. 2271, 2272 (2016).
[2] Texas v. U.S., 809 F.3d 134, 148 (5th Cir. 2015), aff’d per curiam, 136 S.Ct. 2271 (2016).
[3] 136 S.Ct. 2271 (2016).
[4] Id. at 2272.
[5] 809 F.3d 134.
[6] Id. at 146.
[7] Id.
[8] Id. at 149; 5 U.S.C. § 553 (LEXIS through PL 114-219).
[9] Texas v. U.S., 809 F.3d at 149; U.S. Const. art II § 3.
[10] Texas v. U.S., 809 F.3d at 147.
[11] Id.
[12] Id. at 148.
[13] Haeyoun Park and Alicia Parlapiano, Supreme Court’s Decision on Immigration Case Affects Millions of Unauthorized Immigrants, N.Y. Times (June 23, 2016), http://www.nytimes.com/interactive/2016/06/22/us/who-is-affected-by-supreme-court-decision-on-immigration.html?_r=0 (last visited September 19, 2016).
[14] Remarks, President Barack Obama, Remarks by the President on the Supreme Court Decision on U.S. Versus Texas (June 23, 2016), https://www.whitehouse.gov/the-press-office/2016/06/23/remarks-president-supreme-court-decision-us-versus-texas [hereinafter Remarks on U.S. v. Texas] (last visited September 23, 2016).
[15] Remarks, President Barack Obama, Remarks by the President Announcing Judge Merrick Garland as his Nominee to the Supreme Court (March 16, 2016), https://www.whitehouse.gov/the-press-office/2016/03/16/remarks-president-announcing-judge-merrick-garland-his-nominee-supreme (last visited September 23, 2016).
[16] Press Release, Sen. Chuck Grassley, Grassley Statement on the Death of Supreme Court Justice Antonin Scalia (Feb. 13, 2016), http://www.grassley.senate.gov/news/news-releases/grassley-statement-death-supreme-court-justice-antonin-scalia (last visited September 23, 2016).
[17] Id.
[18] Id.
[19] Remarks on U.S. v. Texas, supra note 14 (noting that a Supreme Court nomination for the past 40 years has an average time period of a little over two months between the nomination and a hearing and since President Obama nominated Judge Garland three months before the U.S. v. Texas decision, Judge Garland could have been the ninth justice to break the tie).
[20] Adam Liptak, Larry Buchanan, and Alicia Parlapiano, How a Vacancy on the Supreme Court Affected Cases in the 2015-16 Term, N.Y. Times (June 27, 2016), http://www.nytimes.com/interactive/2016/02/14/us/politics/how-scalias-death-could-affect-major-supreme-court-cases-in-the-2016-term.html (last visited September 23, 2016).
[21] Id.
[22] Remarks on U.S. v. Texas, supra note 14.
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