This morning, over 4.5 million undocumented people, including mothers, fathers, children, friends, and coworkers, were stripped of a sense of hope for better things to come. The eight justices of the U.S. Supreme Court elected to all but kill President Obama’s most significant attempt at immigration reform. In a 4-4 split, the decision came down to a single sentence: “The judgment is affirmed by an equally divided Court.”
Deadlock has not only characterized this Supreme Court case, but can also be used to describe the American political treatment of immigration for the past decade.
SCOTUS upheld the decision of the lower 5th Circuit Appellate Court (Texas v. United States) in November 2015, blocking President Obama’s November 2014 executive order that would have deferred the deportations of young undocumented immigrants and their parents. The people who could have benefitted are undocumented, but they are also hard-working, tax-paying community members, who continuously lived and worked in the United States for at least ten years with no criminal record. The reach of this one-sentence decision is ironically long, and has the potential to devastate the lives of many of our neighbors and hundreds of our clients.
The human impact of this decision cannot be understated, and the political reasons why it turned out the way it did could not be more frustrating. For years, American exasperation with endemic political deadlock has been mounting, evidenced in record-setting Congressional dissatisfaction levels and ever-increasing public disenfranchisement. Today this deadlock was extended into the judicial branch, putting a rotten cherry on top of what has amounted to years of failure and delays in attempts to accomplish immigration reform.
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As devastating as today’s SCOTUS decision may be, in many ways, it is years in the making, even considering the series of victories that initially characterized immigration policy. The beginning of Obama’s second term looked to be promising for immigration reform. In 2013, in the shadows of the momentous 2012 Deferred Action for Childhood Arrivals (DACA) directive, the Senate managed to pass a largely bipartisan comprehensive immigration reform bill that outlined the most significant changes in a generation. At the time, it was known that pushing such a bipartisan immigration effort through the House of Representatives would be onerous, at best — the Republican side contained a vocal, anti-immigration Tea Party contingent that had a giant collective chip on its shoulder and something to prove (not to mention, notoriously aggressive and unforgiving campaign donors). Despite constant calls for immigration reform from a wide range of actors, including evangelical groups, human rights organizations, corporations, and immigration activists, then-Speaker John Boehner put off the vote in his chamber for eighteen months, electing instead to issue a largely-criticized immigration plan at the end of 2014.
Attempting to live up to his campaign promises, and in efforts to achieve reform that was so far a casualty of polarized party politics in Congress, President Obama issued an historic executive order on November 20, 2014, which, among other things, extended deferred deportation and work authorization to include parents of U.S. Citizens and Legal Permanent Residents (DAPA), and expanded the eligibility qualifications of DACA. Despite the dismissal by Administration lawyers of the idea that there would be any significant legal challenge from Republicans in the following weeks, 26 states sued the Obama administration and found a trial judge in Andrew Hanen who was willing to issue a legally-unusual nationwide injunction from a regional bench. As years passed, the case was kicked through the appeals process to the Supreme Court, and the lives of millions hung in the balance, continually uncertain of their futures in the United States.
With the death of Supreme Court Justice Antonin Scalia in 2016, it became clear that a 4-4 split along ideological lines had become a real possibility. Because an even split among an eight-member Supreme Court would uphold the lower court’s decision to block immigration reform, opponents of Obama’s executive order had another way to victory. Conveniently, and although it ran contrary to their constitutional duties, Senate Republicans refused to consider President Obama’s nominee for Scalia’s replacement on the Supreme Court, Merrick Garland months before the decision came down today. The odds were stacked for an anti-reform decision from the Court.
Where do we go from here?
Entertaining the “what if’s” that cloud today’s SCOTUS decision is a fool’s errand; after all, there is no guarantee that a newly-minted Justice Garland would have voted in favor of immigration reform. Further, today’s decision does contain a silver lining for immigration advocates, as a deadlocked split in SCOTUS is not precedential, and allows future immigration reforms via similar vehicles — i.e. executive orders — to be possible. Heartbreakingly, the voice of the immigrant, which has hardly risen to louder than a whisper in the ongoing national immigration conversation, has been drowned out by the cacophony of petty politics and inaction that has characterized this issue over the last four years. Roadblock after roadblock have translated into delays and turmoil in the lives of real people and today led to another deafening pause. Today, the Supreme Court elected to stick with more deadlock. Today’s decision is a continuation of the status quo, with the single exception that now, millions of immigrants can stop holding out for hope.
Immigration reform is dead, at least for the remainder of Mr. Obama’s tenure. On a day to day level, former prospective DAPA/DACA+ eligible individuals should still be low priority for deportation per the guidelines issued by DHS (although we have outlined in the past how these guidelines are often ignored, and how one’s chances of removal are based largely on where one lives). If you are someone who is eligible for DACA under the original 2012 guidelines, your chances at relief are unaffected by today’s decision. However, SCOTUS’ ruling was a gut punch to immigration advocates, as it confirms what has been suspected for years — characteristic inaction rules in our political system, even when the consequences include shattered families, a diminished workforce, and lost human potential.
With Obama effectively sidelined in the immigration battle and with one of the least productive legislatures in modern history, it appears that significant immigration reform will depend largely on the outcome of November’s presidential election. Despite today’s bad news, the fight is long from over, and regardless of the turns of the American political tide, our office will continue to support and advocate for reform.