WASHINGTON, D.C.—President Barack Obama’s executive amnesty program for illegal aliens went down in flames Thursday when the U.S. Supreme Court deadlocked 4-4 on the case, leaving in place the lower court’s decision striking down Obama’s program. But a Hillary Clinton victory in November would mean that amnesty would return—and be upheld by a new Supreme Court.
As Breitbart News has reported, in November 2014, Obama reversed his previous position that only Congress can change immigration law, declaring the Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), which granted amnesty to 4.5 million illegal aliens in the United States.
Twenty-six states—a majority of the states in the Union—led by Texas, filed a lawsuit challenging the legality of this program. The U.S. Court of Appeals for the Fifth Circuit agreed with a federal trial court that Obama’s program is illegal. The Fifth Circuit held that DAPA did not follow the Administration Procedure Act’s (APA’s) requirements for how the federal government creates rules and regulations that carry the force of law, and also that DAPA violated the Immigration and Nationality Act (INA), the federal law passed by Congress that sets forth who can immigrate into this country, and how they can become citizens.
On April 18, the U.S. Supreme Court heard 90 minutes of legal arguments on this case, the details of which Breitbart News covered firsthand from the Court.
On Thursday, the justices tied 4-4 in this historic case, handing down a one-sentence “per curiam” (“for the Court”) order in United States v. Texas that read, “The judgment is affirmed by an equally divided Court.”
When the Supreme Court ties in a case, the lower court opinion is left in place. Therefore the Fifth Circuit’s decision that DAPA is illegal is the law in 26 states. However, it also binds all the defendants in the case nationwide—which means that Attorney General Loretta Lynch, Homeland Security Secretary Jeh Johnson, Labor Secretary Thomas Perez, and all the other federal officials who run DAPA are forbidden from implementing the program anywhere in the nation.
In other words, Obama’s amnesty program is dead.
Former U.S. Ambassador to the United Nations Ken Blackwell exclusively responded to Breitbart News regarding today’s decision by applauding the public benefits of the Fifth Circuit’s judgment staying in place, calling it “a win for the rule of law and the separation of powers.”
“The lower court maintained that immigration policy belongs to the people through their elected officials in Congress and that a president cannot unilaterally change the policy,” Blackwell added. “U.S. citizens and legal immigrants in this country have been spared having to face direct job and wage competition from millions of illegals.”
But this victory may be short-lived.
When the Supreme Court ties, no national precedent is created, because the Court itself issued no opinion. That means new challenges can be brought, and if in the future the Supreme Court decides to reconsider a matter, the justices are not in any way bound by the first case, and can freely decide the new case either way.
The tie in United States v. Texas means that there were four justices willing to sustain Obama’s amnesty. If Hillary Clinton wins the White House, she will fill the Supreme Court seat left vacant by the death of Antonin Scalia.
Because Clinton will appoint only a reliable liberal, she would be able to restart Obama’s amnesty program, let it go immediately into a new court challenge, and make its way quickly to the Supreme Court, where it is a foregone conclusion that the program would be upheld by a 5-4 liberal majority.
In other words, if Hillary Clinton wins, then even if Republicans keep control of Congress, amnesty for millions of illegal aliens will become a reality.
And even until then, Obama’s first amnesty program, DACA (which granted amnesty to a much smaller number of illegal aliens, focusing on children referred to as DREAMers) will also continue in force throughout 2016, because DACA was not challenged in this lawsuit.
This case is also a sobering and disturbing decision for conservatives because there was a narrow issue on which the Court could have unanimously decided this case against Obama on a temporary basis.
The APA issue, in this case, was that all “substantive rules”—that is, regulations that create public policy resembling a law—must go through the APA’s notice-and-comment requirement. This provision of the APA requires the federal government to publish all proposed rules, allow the American public and various expert groups to submit objections and comments, make formal responses to those concerns, and then issue final rules. That way if anyone files a lawsuit challenging the new regulations, there is a lengthy paper trail that a court can use against the government.
If the Court had ruled that notice-and-comment was not followed here, it could have forced Obama to redo the program correctly, allowing a new legal challenge a couple years down the road. It would have kept the government honest and held it accountable, yet still allowed liberals a chance of victory on the ultimate merits of the case down the road.
But the four liberal justices on the Court were unwilling to take even this very modest step.
It is shocking to suggest that the federal government did not need to go through the time-consuming process, which is used to ensure transparency and enforce government accountability. If Obama could do DAPA without notice-and-comment, then a future president could similarly enact other multi-billion-dollar programs with enormous national consequences without undergoing the process, such as EPA cap-and-trade programs, creating LGBT rules, or fundamental changes in labor laws, education policy, or military policy.
So the ultimate fate of immigration amnesty and a host of other issues will ultimately be decided by November’s election and the Supreme Court that America’s next president will create.
Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.