How the Supreme Court Punted Immigration to the Next President
Rosario Reyes, an undocumented mother from El Salvador, reacts to news on a Supreme Court decision blocking Obama's immigration plan, which would have protected millions of immigrants from deportation, in front of the U.S. Supreme Court, on June 23, 2016 in Washington, D.C.Allison Shelley / Getty Images
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Think the stakes of the election are high? Imagine being an American citizen with a parent who’s an undocumented immigrant.
The Supreme Court’s decision on Thursday to block President Obama’s DAPA program, which would have temporarily protected millions of undocumented families from deportation, underscored the vast gulf between Hillary Clinton and Donald Trump on immigration.
Hillary Clinton has pledged to go even further than Obama in reducing deportations should Congress again fail to pass immigration reform themselves. Meanwhile, Donald Trump is running on a plan to deport all of the estimated 11 million undocumented immigrants in America in his first two years in office.
The court’s decision means that a large chunk of those immigrants — as many as 4 million by some estimates — will be left in limbo. Had Obama’s actions gone through, many of them would have earned the ability to legally stay and work in the country on a temporary basis. Now their status is left in doubt for the foreseeable future and the election will take on even greater urgency for activists looking to either protect or remove them.
Immigration advocates on both sides of the debate stressed that the court case leaves the broad dynamics of the 2016 election unchanged. The court, split 4-4 in part because of the GOP blockade against Obama nominee Merrick Garland, did not set any new precedent that would prevent the next White House from issuing new executive orders or trying to implement Obama’s again. They only permitted a lower court to block Obama’s DAPA program and an expansion of DACA. That means the final decision still hinges on whichever justice — if any — the next president manages to appoint.
“What this really does is make the election, which was already going to be a pretty stark choice, an even more stark choice,” Mark Krikorian, executive director of the Center for Immigration Studies, which favors tighter restrictions on immigration, told NBC News.
“The Republicans are responsible for this,” Cristina Jimenez, managing director of DREAMer advocacy group United We Dream, told reporters Thursday. “We will hold all of those policy makers and Republicans accountable. Our community will not forget.”
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In theory, the court decision changes little for Trump. As president, immigration enforcement would be at his discretion and he’s long pledged to get rid of Obama’s orders, including the Deferred Action for Childhood Arrivals (DACA) program that grants work permits to young undocumented immigrants who entered the country as children.
“The election, and the Supreme Court appointments that come with it will decide whether or not we have a border and, hence, a country,” Trump said in a statement. “Clinton has pledged to expand Obama's executive amnesty, hurting poor African-American and Hispanic workers by giving away their jobs and federal resources to illegal immigrant labor — while making us all less safe.”
But Krikorian suggested the impact may have been greater than it appears. Had Obama succeeded at the court on Thursday, Trump would have faced the added political barrier of deporting millions of Americans who by that point would have legal jobs and greater legitimacy in the eyes of voters.
“It becomes difficult to undo that regardless of what you might say during the campaign,” Krikorian said. “Politically, it’s game over.”
Clinton drew a direct line between the split court decision on Thursday and the high stakes in November, underlining her message that Trump would be a disaster for voters who value immigration.
“Trump has pledged to repeal President Obama’s executive actions on his first day in office. He has called Mexican immigrants ‘rapists’ and ‘murderers,” Clinton said in a statement. “He has called for creating a deportation force to tear 11 million people away from their families and their homes.”
The decision puts a huge amount of pressure on her to regroup and lay out clear plan. She had previously built her immigration platform almost entirely on Obama’s executive actions. In fact, she vowed to take the actions a step further to provide relief to the parents of DREAMers. Without Obama’s programs to use as a foundation, the rest of her proposals easily crumble.
However, Clinton does have options in assuring supporters that if elected, she can potentially carry out Obama’s plans for DAPA and DACA, even if immigration reform fails in Congress.
Immigration advocates are pressing for the Department of Justice to ask for a second-shot at arguing the DAPA case as soon as a ninth justice is confirmed. Their idea is that if Democrats are able to get Garland confirmed, and get a second hearing on the DAPA case, the odds of a favorable decision from the new Supreme Court would likely tilt Obama’s way. Approval to grant a re-hearing before the high court is exceptionally rare, but so are the circumstances that led to the empty seat on the bench.
In the long term, the lower courts have yet to decide on the underlying merits of the lawsuit challenging Obama’s executive actions — the Supreme Court decision was only about whether they should be halted during the case. While those courts aren’t likely to rule in the administration’s favor either, their work buys Congress time to approve a new justice before DAPA is brought before the Supreme Court once again.
But bottom line, the odds of any of these scenarios playing out before the end of Obama’s second term remain pretty slim.
“[It’s] hard to see any scenarios where the case gets decided before Obama leaves office,” David Leopold, an immigration attorney and advocate, told NBC News.
Looking past the election, while opposition to Obama’s executive orders unites Republicans almost across the spectrum, the underlying issue of what to do about immigration remains unsolved. Trump represents one decisive extreme, but the rest of the party is torn between lawmakers who want to pass a reform package with a path to legal status, lawmakers who are opposed to letting undocumented immigrants remain in the country, and a whole lot in the mushy middle waiting to see how the debate plays out.
A coalition of nine pro-immigration House Republicans issued a joint statement Thursday reminding the GOP that, win or lose, the ball is still in their court to come up with a consensus alternative.
“The Supreme Court has spoken, but today's decision does not resolve the issue,” the statement said. “The American people expect Congress to work together to secure our borders, adhere to the rule of law, offer a humane solution to those living in the shadows, modernize our visa system, and bolster the economy."
Benjy Sarlin is a political reporter for NBC News.