A Pyrrhic Victory

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On June 23, the Supreme Court deadlocked 4-4 in a case brought by the state of Texas and 25 other states against President Obama’s executive action that would have temporarily protected from deportation the undocumented parents of U.S. citizen children. At issue as well was an expansion of the Deferred Action for Childhood Arrivals program (DACA). (The original DACA program, which has successfully protected hundreds of thousands of young people, was not the subject of this litigation.) As a result of the deadlock, a lower court’s temporary injunction against the executive actions remains in place.

The decision was an extreme disappointment for advocates for immigrants and for about five million undocumented immigrants who have lived here for many years, working and raising their families in a legal limbo.

The Supreme Court’s decision was a victory for the Republican governors and attorneys general who brought the lawsuit, and it demonstrated that shopping for the right judge can bring the desired decision. (That, and having a Senate that has stopped doing its job, refusing to consider the President’s nominee for the Supreme Court, making a 4-4 deadlock possible.)

But it is a pyrrhic victory. It preserves the status quo, for now. It’s worth repeating something I wrote a year and a half ago when the injunction was first issued.

The ruling does not mean that there will be a lot of deportations of long-resident undocumented immigrants with families here. DHS has immigration enforcement priorities that focus on national security threats, violent criminals, and persons who have very recently crossed the border illegally. Similar prosecutorial priorities have been in place for a number of years.

While there continue to be low priority arrests and deportations, previous analysis of immigration enforcement has shown that, for undocumented immigrants in the interior of the U.S. who have not been convicted of a crime, arrest and deportation is unlikely.

The bigger effects of the Supreme Court deadlock are psychological and political. For the undocumented immigrants who would have benefited from the President’s policies, having little chance of being deported is not the same as having work authorization and protection from deportation.

Politically, the Supreme Court’s deadlock in a case brought before it by Republican governors reinforces the narrative for Latinos that Republicans just want to deport them. It is a narrative that is magnified by the nativist campaign of the current Republican presumptive presidential nominee.

The merits of the case have yet to be argued. This ruling was on an appeal of Judge Hanen’s temporary injunction against the administration. The next round will be fought in the next administration.

In the meantime, the issue is kept alive and will help serve to motivate the Latino and new American electorate. For the millions of undocumented immigrants whose lives remain in limbo, the next Supreme Court appointment could be a matter of life and death. Millions of their citizen family members, friends, and advocates will have this in mind as they vote in November.