Why is the program blocked when the Court is split equally? Because the lower court, the Fifth Circuit, ruled against it, and when SCOTUS is deadlocked the lower court’s ruling stands.
A lot had to go right to get to this point. The plaintiffs ended up with a Bush appointee, Judge Andrew Hanen, at the trial level; Hanen issued a preliminary injunction against Obama’s DAPA amnesty, which granted legal status and work permits to an expanded class of illegals. The feds appealed to the Fifth Circuit, and the luck of the draw at that level produced a three-judge panel of one Reagan appointee, one Bush appointee, and one Carter appointee. Result: 2-1 to uphold Hanen’s injunction. Then the plaintiffs had to hope that Anthony Kennedy, who provided the decisive vote elsewhere this morning in upholding the University of Texas’s affirmative action scheme, would resist the urge to tilt left on this one too and form a clear 5-3 majority for O’s order in the name of providing certainty to the millions of illegals currently in DAPA limbo. The Court doesn’t say how the justices voted but it’s a safe bet that Kennedy came through.
And amid all of this, border hawks had to hope that Mitch McConnell and Senate Republicans would continue to hold the line and refuse to confirm Merrick Garland, who surely would have done his friend Barack a solid by providing the fifth vote to uphold his order. Everything had to go right for Texas and the other plaintiffs. It did.
The high court ruling is a major blow to Obama’s effort to redeem his legacy on immigration, an issue which was pushed to the back burner early in his presidency and never regained much momentum. It also leaves Obama branded by many immigration activists as the “deporter-in-chief” for overseeing the removal of more than 2.5 million migrants from the U.S.
Obama hoped to counter those perceptions with the executive-action program he created for so-called “Dreamers” in 2012 and the new one for parents, which was set to begin early last year before a federal judge in Texas halted it…
Because the new ruling doesn’t set precedent for future cases, it doesn’t slam the door on future executive actions, but it does demonstrate the perils of a president trying to act without explicit authority from Congress.
Paul Ryan, not known as a critic of amnesty, politely dodges the underlying issue and celebrates a tentative victory for separation of powers:
BREAKING: President Obama's use of executive action to grant amnesty to illegal immigrants is now null and void: pic.twitter.com/hsDrVSS93a
— Paul Ryan (@SpeakerRyan) June 23, 2016
The politics here are easy. For Trump this is sweet, sweet candy he can use to try to convince skeptics on the right that it’s worth backing him after all. The future of this issue now clearly depends on which president gets to fill Scalia’s seat. The Supreme Court was always his strongest pitch to #NeverTrumpers but now it’s stronger. (He’ll point to the affirmative action ruling too to support that argument, but that went 4-3 with Kennedy joining the other liberals. It would have gone 5-3 except that Kagan recused herself because she worked on the case during her time at the DOJ. That cause is lost until Kennedy retires, I’m afraid.) Big caveat, though: Hillary’s obviously going to put this ruling to use too to try to mobilize Latino registration and turnout. There are some states, among them Arizona, that could be put in play if Democrats can get Latinos excited to vote against Trump. Hillary’s been working hard on that for months, going even further than Obama in saying back in March that she wanted to build on O’s order by ending deportations for all illegals except violent criminals. DAPA getting nuked might give that further resonance with the Hispanics Democrats are targeting.
I’ll leave you with this surprising bit of poll data. Fifty-eight percent of Trump supporters want to allow illegals to remain in the U.S.?
Update: The White House says Obama will address the ruling at 11:45 ET, so expect him at the podium sometime between 12:15 and 12:30.
Update: There’s actually one more thing that had to go to right for the plaintiffs in this case. After the three-judge panel ruled against Obama, the DOJ could have asked for an “en banc” rehearing by the Fifth Circuit. That would have involved all of the court’s judges, not just three. If they had done that and the ruling had been in favor of Obama, that would be the ruling that stands today per the Supreme Court’s 4-4 deadlock. Big mistake.
Update: But yes, don’t think it doesn’t hurt not to have Scalia here.
If Scalia had lived, we'd be poring over a SCOTUS decision slapping down executive overreach right now.
— Gabriel Malor (@gabrielmalor) June 23, 2016
The Court would have gone 5-4 against O’s order and Gabe’s right that the opinion probably would have provided an important precedent reining in executive orders. Today is a win, but it’s potentially temporary and it doesn’t provide any direction from the high court to others about how skeptical to be of executive power.