It is hard to know what to say about an immigration opinion affecting 4.3 million people that reads, in its entirety: “The judgment is affirmed by an equally divided Court.” Seldom have so many hopes been crushed by so few words. I am stunned and disappointed that not a single one of the conservative justices cast a vote to sustain the president’s immigration guidance, or at least to hold more modestly that Texas lacked legal standing to bring the challenge in the first place. The president’s action was not lawless as opponents argued. There are 11.3 million people in the United States who, for one reason or another, are deportable. The largest number that can be deported in any year, under the resources provided by Congress, is somewhere around 400,000. Congress has recognized this and has by statute imposed upon the secretary of Homeland Security the responsibility to establish “national immigration enforcement policies and priorities.” The secretary did just that in deferring deportation action against 4.3 million people, largely parents of U.S. citizens or lawful residents.
That authority is so clear that at the Supreme Court, Texas did not even challenge the authority of the administration to forbear from deporting those covered by the guidance. What was really at stake at the end was the decision to grant work authorization—under regulations tracing back to the administration of Ronald Reagan—to those for whom deportation was deferred. Although Obama’s order was the most expansive use of the work authorization authority, the arguments in favor of the Obama action’s lawfulness put forward by the solicitor general and by Georgetown professor Marty Lederman have never been effectively answered by anyone, in my view.
This battle is not over. The Department of Justice should consider taking a step it has rarely taken: filing a motion asking the court to reconsider the decision and further asking the court to defer acting on the petition until there is a full complement of justices. I believe that at least twice during the New Deal, the Franklin Roosevelt administration successfully asked for a rehearing of cases that had been heard by an equally divided court.
For now, however, today’s decision casts the counter-majoritarian role of the court in a particularly harsh light. Immigration reform more sweeping than that undertaken by the president was supported by more than 70 senators and would have been supported by the House of Representatives, as well as the president. So why is it not law? Because the House Republican leadership refused to allow legislation supported by a majority of the House to come to a vote.
And now a more legally modest, but enormously important, action taken by a president twice elected by clear voting majorities has been set aside by a small group of unelected judges. I recapitulate: This was a case brought before a judge singled out by the challengers because there was no doubt as to his hostility toward current immigration policies. His overreaching nationwide injunction was upheld by two 2–1 panels (with the four judges who sat on the two cases combined splitting 2–2). And now four justices who disagree with four other justices have brought the president’s program down. And because the court lacks a ninth justice, and is evenly divided, we don’t even have the benefit of an opinion explaining this extraordinary result. This decision, or non-decision, represents a signal failure of democracy.