President Obama is facing the very real possibility of a deadlock at the Supreme Court that guarantees his immigration actions won’t take effect before he leaves office.
If the justices split 4-4 on the case, as observers say is possible, the president’s attempt to shield nearly 5 million people from deportation would be sent back to the lower courts for another lengthy legal battle that would surely spill into the next administration.
Oral arguments in the case are set for April 18, which means a decision could come in late June.
The high court has already deadlocked twice since the death in February of Justice Antonin Scalia, most recently in a case that questioned whether public sector workers should be required to pay their “fare share” of union fees.
Given the court’s current trajectory, court watchers say an even split in the immigration case, known as United States v. Texas, would not be surprising.
"I don't have a crystal ball, but it's certainly possible," said Texas Attorney General Ken Paxton.
The immigration actions have been on ice for months, after a Texas district court issued a temporary injunction preventing them from taking effect pending a contrary order from a higher court or a trial on the merits of the case. After the Fifth Circuit Court of Appeals failed to lift the injunction, the administration sought to speed up the process by taking the the case to the Supreme Court.
Supporters of the administration insist Scalia’s death will have no outcome on the case, predicting that Chief Justice John Roberts and Justice Anthony Kennedy could rule in the administration’s favor.
“I cannot predict the way the case will come out, but I do think we are on very solid legal ground,” said Melissa Crow, legal director for the American Immigration Council, which joined a brief in support of the administration. “I don’t think Scalia’s death set us back in any way.”
Crow and other supporters of the administration are hoping the court will find that the states do not have standing to sue over the immigration actions. In that scenario, the lawsuit would be dismissed and the long-delayed immigration actions could move forward.
“The possibility that the case could go forward on such tenuous grounds is frightening,” Crow said of the states being granted standing. “It would enable states to essentially have unilateral veto power over federal policies not only in the immigrations arena, but other areas where the federal government is steering the course.”
Texas and the 25 other states challenging Obama’s actions argue the DAPA program will cost them millions of dollars by allowing undocumented parents of both American citizens and legal permanent residents to stay in the country.
Texas says it would incur the most cost by having to issue a substantial number of new driver’s licenses.
“Put simply, DAPA will directly cause a flood of new driver’s license applications and an injunction of DAPA would allow plaintiffs to avoid the unwanted cost of issuing those licenses,” the state said in court documents. “That easily establishes a personal stake in this case.”
Supporters of the administration say Texas could pass the added costs for driver’s licenses on to residents, and argue that the states actually stand to make money off of Obama’s programs.
Tom Jawetz, the vice president of immigration policy at the Center for American Progress, said studies show state and local tax contributions would increase by an estimated $805 million each year and state GDP would increase by $91.9 billion over the next 10 years if the immigration actions were allowed to proceed.
But Paxton argues the cost to states is not the central issue in the case — the issue is the rule of law.
“That’s what gave us standing, but that’s not the issue,” he said. “It’s can the president change the law and if he can, we’re talking about a whole different country, a whole different Constitution.”
Though Paxton hopes the justices will unanimously side with the states, he said a deadlocked decision would still be a victory because it would allow the states to go back to the lower courts and fully argue the case on the merits.
“A win’s a win,” he said. “We want more than a preliminary injunction. We want a ruling on the merits that this action by the president is unlawful.”
Paxton said he is encouraged by the court’s request for the parties to argue whether the immigration programs violated the Take Care Clause under Article II of the Constitution, which directs the president to take care that the laws are faithfully executed. He said the request for arguments on that point is a sign that the justices are determined to settle the case once and for all.
Some groups are hoping for a dismissal instead.
John Miano, counsel for Save Jobs USA and the Washington Alliance of Technology Workers, said it’s unusual for the Supreme Court to rule on a preliminary injunction.
“The government is trying to get the Supreme Court to decide the merits of the case before the merits of the case are decided in the lower courts,” he said.
“The best outcome in the Texas case is for the Supreme Court to recognize its mistake and dismiss the writ of certiorari as improvidently granted and let the case proceed.”
