What Comes Next After Supreme Court Ties on US Versus Texas

The Supreme Court ruled this week 4-4 on the controversial case of U.S. v. Texas, the case looking at President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and the expansion of the 2012 Deferred Action for Childhood Arrivals (DACA) program, which would affect millions of undocumented immigrants. The tie, the result of the death of conservative Justice Antonin Scalia in February (who almost certainly would have voted to overturn the programs), means that the lower appeals court preliminary injunction will be left standing.

The preliminary injunction entered by the 5th circuit court restrained the executive branch from proceeding with DAPA (DAPA would allow some immigrants with children who are American citizens or lawful permanent residents to apply for deferred action, which would give them three year work permits and exemption from deportation for that time) and the expansion of DACA (The expansion would eliminate the upper age cap of 31 for DACA and expand two year renewable work permits and exemptions from deportation rather to three years). Because the Obama administration only appealed from the injunction itself, not a final judgment, the underlying case is still proceeding forward. The Supreme Court’s tied decision effectively just continues to keep the administration from implementing the programs until the lower federal court has ruled on the merits.

The case does not look great for the Obama administration at this point. Preliminary injunctions require the plaintiff (in this case, the 26 states challenging Obama’s action under the “Take Care” clause of the Constitution, immigration laws, and the Administrative Procedure Act) to show “a substantial likelihood of success on the merits.” Because the plaintiffs won a preliminary injunction, it has already been determined by the federal trial court judge and affirmed by the Fifth Circuit Court of Appeals that Obama’s action was probably not within its legal discretion under immigration law.

However, because the Supreme Court’s decision was a split 4-4 decision, only the fifth circuit’s preliminary injunction has been upheld, with no binding national precedent on lower courts outside the Fifth Circuit. Thus, federal courts outside of the Fifth Circuit (made up of Louisiana, Mississippi, and Texas) could potentially rule differently from the Fifth Circuit Court.

The situation is complicated by the fact that even if courts ultimately do rule in President Obama’s favor and uphold the DAPA program and the expansion of the DACA program, it is extremely unlikely that the changes will be implemented while Obama is still in office. It’s also unlikely that Congress will take any action on the issue prior to the November election. This issue will fall in the lap of the next President and the next Congress.

Those same players will have to address the still unfilled seat on the Supreme Court; the Republican majority in the U.S. Senate still refuses to hold hearings for Obama’s nominee for the seat, Merrick Garland. Though we can’t know for sure how either Scalia or Garland would have decided on U.S. v. Texas, it’s probable that the Senate’s stalemate directly impacted the decision here, affecting an estimated 4.7 million immigrants in the United States unlawfully.