Circuit court opinions are not generally prime-time fodder, but presidential primary season provides exceptions to many rules. During Tuesday’s Republican debate, moderator Maria Bartiromo asked Donald Trump about a circuit court opinion from earlier in the week. Trump was unable to contain his glee.
“I was so happy when I saw that decision came down,” Trump exclaimed. “It was an unbelievable decision.” If you have been following Trump’s campaign, you won’t be surprised to know that the decision was about keeping Latino immigrants from staying here.
The fifth circuit court of appeals upheld a district court ruling Monday holding unconstitutional an executive order by President Obama that would allow undocumented immigrants to stay if they meet several conditions, such as having children who are American citizens, called the Deferred Action to Parents of Americans and Lawful Permanent Residents (Dapa) memo.
The three-judge panel split on predictable party lines, with the two Republican-nominated judges finding against Obama’s executive action and the lone Democratic nominee on the panel dissenting.
The dissent, by Jimmy Carter nominee Carolyn King, made a stronger argument despite not having the votes to carry the day. She emphasized that Congress has provided the resources to deport only a small fraction of the people who are in the United States illegally, instead delegating decisions about deportation to the Department of Homeland Security. The argument against the administration, in a nutshell, is that Dapa’s selective enforcement and prioritizing some deportations over others is making new law and therefore usurping Congress. But the executive order is not usurping Congress because, for all intents and purposes, it reflects the policy established by Congress.
The Dapa memorandum “is the inevitable upshot of decades of congressional appropriations decisions”, King observes. It’s hard to argue that an executive order exceeds the authority of the executive branch when it reflects decisions that Congress has explicitly and implicitly required the executive branch to make.
But regardless of whether you agree with King or the majority, there are only nine votes that count. Which brings us to the question of how the US supreme court will deal with this issue.
The four Democratic nominees on the court are mortal locks to uphold the order if they agree to hear the case, and three Republican nominees (Justices Antonin Scalia, Clarence Thomas and Samuel Alito) mortal locks to find the order illegal. So as with many such cases, it will come down to chief justice John Roberts and justice Anthony Kennedy, and before oral argument I wouldn’t even venture a guess about how they would rule.
But the timing of the fifth circuit’s ruling makes it likely, though not certain, that the supreme court will hear the case this term. Generally, mid-to-late November is the latest that someone can file an appeal and have it heard before the supreme court’s term ends in late June. As Ian Millhiser of ThinkProgress points out, the last case the supreme court heard in its previous term – the landmark same-sex marriage decision Obergefell v Hodges – was an appeal filed on 14 November.
If the court decides not to hear the case next term, the delay would perpetuate the uncertainty facing a large class of undocumented immigrants that will not be deported but are not eligible for key benefits like driver’s licenses that Obama’s executive order is attempting to alleviate. And of course, a policy that has not been put into effect would be easier for a new Republican administration to change.
If the court does take the case, however, it is overwhelmingly likely that a ruling will not be handed down until late June. It will come down, therefore, with the presidential campaign well under way. Trump will probably not be the Republican nominee, but his presence will have made immigration an important issue and also will have probably required the Republican candidate to have committed to a relatively extreme position on immigration.
However it decides, the supreme court will make clear the stakes of the next election, as the next president will have to either decide whether to continue Dapa or figure out how to act if it’s been struck down. Politically, a supreme court decision in June would probably be good news for Hillary Clinton either way. But whether good news is coming for more than 4 million undocumented immigrants is far less clear.
