Barack Obama’s immigration program to protect some families from deportation relief remains blocked by a court order, after the supreme court deadlocked in a 4-4 tie, a decision crucial to the president’s legacy.
The opinion represents a significant blow to Obama during his final months in office. It will allow Republicans to claim victory in their argument that he overreached presidential powers and failed to protect America’s borders.
It comes in an election year in which immigration has proven a bitterly divisive issue in the battle to succeed him.
The court had heard arguments in April over whether to revive Obama’s plan to spare roughly 4 million undocumented immigrants – those who have lived illegally in the US at least since 2010, have no criminal record and have children who are US citizens or lawful permanent residents – from mass deportations that would rip many families apart.
The president took the unilateral action after House Republicans thwarted bipartisan legislation providing a path to citizenship for illegal immigrants that was passed by the Senate in 2013.
But his executive action was challenged by 26 states, all of which are led by Republican governors (California, which has a significant immigrant population but is led by a Democratic governor, did not join). They argued that Obama had overreached and does not have the power to effectively change immigration law.
A federal judge in Texas ruled in their favour and the fifth US circuit court of appeals upheld that decision last November.
The supreme court’s 90-minute hearing in April considered the argument over the recent expansion of Deferred Action for Childhood Arrivals (Daca) and the creation of Deferred Action for Parents of Americans and Lawful Permanent Residents (Dapa).
It noted the importance of a two-word phrase the administration used to describe the status of immigrants under the programmes: lawful presence. The states argued that it gives the immigrants more rights than federal law allows.
The hearing also illustrated the current 4-4 split between conservative and liberal justices on the court. Sonia Sotomayor and other liberals grilled Scott Keller, the solicitor general of Texas, while the conservative justices challenged the US solicitor general, Donald Verrilli, acting for the government.
Keller asserted that Dapa is an unprecedented unlawful assertion of executive power and one of the biggest changes in immigration policy in American history. Sotomayor fiercely disputed this.
The states also raised concerns that deferred action opens the way for immigrants to gain authorisation to work, eligibility for benefits and obtain driver’s licences with the financial burden that would entail in a state such as Texas.
Verrilli asserted the president’s authority to set priorities for immigration enforcement. But Justice Anthony Kennedy questioned whether the president can defer deportations for millions of people without congressional authorisation, saying “that is a legislative task, not an executive task”.
He added: “It’s as if the president is defining the policy and the Congress is executing it. That’s just upside down.”
With the late justice Antonin Scalia’s seat unfilled, there were fears of a 4-4 tie that would leave in place the appeals court ruling that blocks the plan and prevent Obama from trying to revive it while he remains in office.
Outside the supreme court that day, more than a thousand demonstrators gathered in defence of Obama’s programme, afraid that family members could be separated from one another. They marched with banners that said “Keep Families Together” and chanted: “We’re home and here to stay, undocumented and unafraid.”
The case has political purchase in an election year in which the presumptive Republican nominee, Donald Trump, has pledged to round up and deport all 11 million undocumented immigrants, described Mexican immigrants as “rapists” and promised to build a wall along the border.
Hillary Clinton, the presumptive Democratic nominee, said recently: “I strongly believe that these executive actions that are rooted in law and precedent will be upheld, but the fate of these policies, and of the millions of people who were impacted by them, will be in the hands of the next president.
“If Donald Trump is that president, he has pledged to eliminate Daca and Dapa on day one. He has said he will create a ‘deportation force’ to round up 11 million people. He will tear apart families, separate parents and children, rip young people out of school and workers from their jobs. He has even said he will undermine that most fundamental American value – that if you are born here, no matter who your parents are or where they came from, you are an American.”
Copyright © 2016 theguardian.com. All rights reserved.
This content is published through a licensing agreement with Acquire Media using its NewsEdge technology.