Court Deadlocks on President's Immigration Plan

Steven D. Schwinn, John Marshall Law School

The Supreme Court today deadlocked 4-4 in the case challenging President Obama's deferred action plan for certain unauthorized immigrants, or DAPA. The Court's ruling in United States v. Texas affirms the Fifth Circuit's ruling in the case. (Our preview of the case is here.)

While the Court's non-decision today has no precedential value, as a practical matter it upholds a nationwide preliminary injunction against enforcement of DAPA issued by district Judge Hanen. The ruling thus effectively halts enforcement of DAPA and sends the case back to Judge Hanen for proceedings on the merits. Here's the Fifth Circuit's summary of its ruling (which, again, is upheld under today's 4-4 split):

Reviewing the district court's order for abuse of discretion, we affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for an injunction.

Note that the Fifth Circuit ruling doesn't touch the Take Care Clause issue--an issue that the Supreme Court asked the parties to brief and argue, even though the government didn't seek review on this issue. Note, too, that the Fifth Circuit upholds a district judge's preliminary injunction that applies nationwide (and not, as would ordinarily be the case, in the judge's district only).

We don't know the justices' positions on particular issues in the case--standing, APA--because the per curiam order (as is customary for a 4-4 split) simply says that "[t]he judgment is affirmed by an equally divided Court." Still, this appears to be one of those cases where Justice Scalia's absence matters: he would have likely voted with the four (likely the conservatives, although we don't know for sure) to uphold the Fifth Circuit, creating a five Justice majority opinion that would have created precedential law.

The government may petition the Court (now) for rehearing (after a ninth justice is confirmed).