The White House lost on its fight over Barack Obama’s executive orders on immigration when the Supreme Court had nine members, and it won’t get a second chance with the eight remaining. On its first day back in session, the high court denied a rehearing request in US et al v Texas et al, the biggest fight between Washington and the states on enforcement of immigration statutes (via SCOTUSblog):
The Supreme Court refused Monday to reconsider President Obama’s proposed overhaul of the nation’s immigration system following a tie vote in June that blocked its implementation.
The eight-member court’s order shut the door on a plan that already seemed all but dead a few months ago. The court declined to wait until a ninth justice is confirmed and seated in order to rehear the case — and possibly reverse its June decision.
The high court seldom agrees to rehear cases a second time, but it has on occasion done so when a justice’s death or retirement leaves a vacancy that leads to a 4-4 tie. In those cases, the court merely leaves the decision of the lower court intact and sets no national precedent.
Normally it takes four justices to agree on a certiorari request. If that’s the case with rehearing requests, then it appears that one or more of the justices who agreed with the Obama administration decided against a rehearing. The original 4-4 vote counted as a loss as it had the practical effect of upholding the 4th Circuit’s ruling that struck down the executive orders, although it carries no precedential weight otherwise.
This decision leaves the loss in place, and also leaves Obama and his activism with no tools left to intrude on legislative jurisdiction. Had Obama worked in more good faith on this issue rather than leveraging it for cheap demagoguery, he might have found a compromise with Congress. For that matter, if Obama cared about this issue apart from cheap demagoguery, he would have prioritized immigration reform while his party controlled Congress, rather than backing a useless and expensive stimulus package and the disastrous ObamaCare legislation. He might have made himself and Democrats a lot more popular in midterm elections, too.
This closes the books for Obama on immigration. He lost, mostly by forfeit.
Update: It closes the books for Obama, but our friend Hans Bader reminds me that it’s not over yet. This case involved a temporary injunction; the larger case will still have to be heard, unless the next administration moots it by canceling the executive orders.