Tie vote in SCOTUS leaves stay order of President Obama’s DACA and DAPA immigration orders in place during litigation


ImmigrantsThe “Dreamers” (DACA eligible) and their s (DAPA eligible) have been waiting for years and living with doubt and uncertainty as to whether they will be allowed to stay in the U.S., or will eventually be deported.

In the most anticipated case of the term, U.S. v. Texas, the U.S. Supreme Court today delivered an anti-climactic per curiam opinion because the Court is tied 4-4. Opinion.  The Court effectively told DACA and DAPA eligible immigrants that they must continue to wait, perhaps for years, while this case works its way through the lower courts back to the U.S. Supreme Court.

Screenshot from 2016-06-23 10:45:03

The decision to allow the nationwide stay order of U.S. District Court Judge Andrew Hanen to remain in place, upheld by the Fifth Circuit Court of Appeals, would have been the same were Justice Antonin Scalia still on the court, but a 5-4 decision.

There is a chance that with Scalia on the court, the conservative activist justices on the court might have been emboldened to issue a substantive ruling in the case, despite the fact that this case involves only an interlocutory order for a stay order, and no trial on the merits of this case has yet to be scheduled.

So in this respect, delay may eventually work in favor of the petitioners, depending on whom is appointed to fill the vacancy created by the death of Justice Scalia, and whom nominates the next associate justice.

President Obama nominated Judge Merrick Garland months ago, and the Tea-Publican controlled Senate has engaged in an unprecedented “blockade” of his nomination, refusing to even schedule hearings, a courtesy afforded to every other Supreme Court nominee in the past. If you want to talk about an abuse of constitutional power and privilege, it is the Senate GOP leadership.

UPDATE: The American Bar Association has given Merrick Garland a perfect score, its highest possible rating as a prospective Supreme Court Justice.

The petitioners can file a petition for rehearing. Such petitions are almost always immediately denied, but the Court has been sitting on a rehearing petition from another 4-4 decision — Friedrichs — regarding public-sector unions. The government may conclude that filing a petition for rehearing is the best way to allow the court to resolve this when a full compliment of Justices is seated, hopefully by the next term beginning the first Monday in October.

In the meantime, this case will return to Judge Hanen in the Southern District of Texas — a conservative activist judge who was hand-picked by the state of Texas by “forum shopping” for a judge likely to rule in its favor.

A trial on the merits may take over a year. However Judge Hanen rules, the case will be appealed to the Fifth Circuit Cort of Appeals, which would mean another year. However the Fifth Circuit Court of Appeals rules, the case will be appealed to the U.S. Supreme Court, which would mean another year.

Meanwhile, DACA and DAPA eligible immigrants will have to wait and live with doubt and uncertainty as to whether they will be allowed to stay in the U.S., or will eventually be deported.

President Obama today expressed his disappointment with the Court’s action. Obama defends immigration plan, decries Supreme Court outcome as advocates focus on 2016 campaign:

A frustrated President Obama on Thursday decried the Supreme Court’s decision not to lift an injunction against his signature immigration program and blamed Republicans for standing in the way of progress, as he and other Democrats vowed to turn immigration into an election litmus test.

“Here’s the bottom line: We’ve got a very real choice that America faces right now,” Obama said during a hastily arranged appearance in the White House briefing room. “We’ve got a choice about who we’re going to be as a country, what we want to teach our kids, and how we want to be represented in Congress and in the White House.”

* * *

Obama defended his deferred action program, emphasizing that a smaller-scale version begun in 2012 to grant work permits to immigrants brought to the country illegally as children will continue. He lambasted the GOP for not granting a confirmation hearing to Merrick Garland, his nominee to fill the vacant Supreme Court seat, and he accused Republicans of using the immigration issue to “scare people” by using “words like ‘amnesty’ to whip up votes.”

“Leaving a broken system that way is not a solution,” Obama said. “That’s the real amnesty.”

* * *

Obama did not mention Trump by name but said his plans [to deport all of the nation’s 11 million undocumented immigrants] amounted to “a fantasy.”

And, he added, “it demeans our tradition of being both a nation of laws and a nation of immigrants. Immigration is not something to fear. Nor do we have to wall ourselves off from those who may not look like us.”

On the campaign trail, presumptive Democratic nominee Hillary Clinton, who has supported the president’s immigration actions, wrote messages on Twitter in both English and Spanish calling the ruling “heartbreaking” because it “could tear apart 5 million families.”

In a statement, Clinton said that the outcome is a “stark reminder of the harm Donald Trump would do to our families, our communities, and our country.”

* * *

Congressional Democrats and immigration advocates echoed Obama’s frustration and vowed to use the legal setback to motivate Latinos and other immigrant groups to vote in November. In 2012, Obama won reelection over Republican Mitt Romney with support from more than 70 percent of Latinos and Asian Americans.

The Washington Post recently reported, The Trump effect: Could Arizona go blue for the first time in 20 years?

Here lies the Democrats’ sleeping giant — an estimated 350,000 Latinos who are not registered to vote but who could mobilize against the presumptive Republican presidential nominee over his incendiary rhetoric.

Cartoon_18.14If you want real political change in Arizona, these 350,000 Latinos who are not registered to vote in Arizona must register to vote — you can do so online at Arizona Voter Registration – ServiceArizona — mobilize the Latino community, and then actually turn out to vote in November.

It’s long past time to turn around Arizona’s historically dismal voter participation rate, not just for Latinos, but for all residents. The politically disengaged who do not vote are the reason why we have the radical extremist Tea-Publican elected officials that we do, i.e., the nativist and racist Mass Deportation Party led by Donald Trump.

UPDATE: The Republic’s E.J. Montini asks, So, NOW will Latinos vote?

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AZ BlueMeanie
The Blue Meanie is an Arizona citizen who wishes, for professional reasons, to remain anonymous when blogging about politics. Armed with a deep knowledge of the law, politics and public policy, as well as pen filled with all the colors stolen from Pepperland, the Blue Meanie’s mission is to pursue and prosecute the hypocrites, liars, and fools of politics and the media – which, in practical terms, is nearly all of them. Don’t even try to unmask him or he’ll seal you in a music-proof bubble and rendition you to Pepperland for a good face-stomping. Read blog posts by the infamous and prolific AZ Blue Meanie here.