Crossposted from David Leopold’s post on Medium.
There has been a lot of speculation about what will happen if the Supreme Court is deadlocked in United States v. Texas, the dispute over DAPA and DACA+, President Obama’s immigration executive actions. The bottom line, as I’ve noted before, is that a 4–4 tie would result in judicial chaos.
To analyze what may happen, it’s important to look back at what happened in the U.S. District Court when Judge Andrew Hanen issued his ruling last year. Hanen, an outspoken critic of the Obama administration’s immigration policy, was the judge sought by the GOP Governors and Attorneys General when they filed their lawsuit challenging the President’s actions.
When Hanen enjoined DAPA and DACA+ he took the unusual step of issuing a nationwide injunction. While the administration asked Hanen to limit his order geographically, it respected his decision and ceased further agency action on the deferred action guidance pending resolution of the litigation.
Since then things have changed.
In February Justice Scalia suddenly died, depriving the Supreme Court of its most outspoken conservative voice. This also created the possibility that the Court could evenly split on the Republican challenge to DAPA and DACA+. While I and many others remain convinced that a majority of the justices — including Chief Justice Roberts — will dismiss the Republican lawsuit on standing grounds, it’s worth considering the ramifications of a 4–4 split among the justices.
First, as a technical matter, if the Supreme Court evenly divides, the decision of the 5th Circuit affirming Hanen’s injunction would remain in place. But, importantly, that might be limited to only the 5th Circuit and no longer nationwide. As Tom Goldstein explained on SCOTUSblog, if “there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case.” Although Goldstein believes such cases are more likely to be reargued once a new justice is confirmed, it’s clear there would be no immediate national precedent in the event of an even split. At Think Progress, Justice Editor Ian Millhiser wrote about what that would mean for U.S. v. Texas:
In a highly unusual order, a federal district judge issued a nationwide halt to the policy and refused to stay that decision. A conservative panel of the conservative United States Court of Appeals for the Fifth Circuit upheld those decisions by the district judge. Thus, if the Court splits 4–4 in the Texas case, the Fifth Circuit’s order will stand.
The ramifications would be severe: In an oped published this morning in the New York Daily News renowned former Manhattan District Attorney Robert Morgenthau explained why:
A tie vote would provide no guiding principle of law, and would leave in place a lower-court ruling preventing the President from enforcing his policy, with nothing to replace it. And that would be a tragedy.
As Justice Ruth Bader Ginsburg noted during the arguments, there are currently approximately 11.3 million undocumented immigrants in the United States. Congress has provided funds to remove perhaps 400,000, which leaves the administration with a huge pool of undocumented immigrants, funding to remove a tiny fraction, and limited guidance from Congress regarding how to prioritize removal procedures.
The result of that disconnect is exactly what you would expect: a travesty. Removal cases pour into immigration courts in a flood, with little hope of resolution.
What then would become of Hanen’s nationwide injunction? According toNoah Feldman, professor of constitutional and international law at Harvard University and Bloomberg View columnist, the answer is not clear:
There’s a legitimate technical question about whether the national injunction should remain in place after the Supreme Court has heard the case. It would take five votes for Supreme Court to issue a national injunction itself — votes that certainly won’t exist. Therefore it’s at least conceivable that the plan could go into place outside the 5th Circuit.
At a minimum, a 4–4 split by the Supreme Court would raise serious questions about the national scope of Hanen’s hold on DAPA and DACA+. If properly challenged in other circuit courts, a tie vote could limit that one District Court judge’s ability to single handedly thwart the administration’s deferred action guidance.
Nor is the tenuous nature of the national injunction in the event of a split lost on the opponents of deferred action. Texas Governor Greg Abbott, who filed the lawsuit against DAPA and DACA+ as Attorney General, has all but conceded the injunction would lose its national effect if the Supreme Court evenly splits:
Because politics is being played at the United States Supreme Court, I think the best we can hope for is a 4–4 split decision, the consequences of which will mean that we will win, but it will not be a broad-based application across the United States affirming the principle that the president does not have the unilateral authority to rewrite the law.
Abbott is wrong that a 4–4 split would be a ‘win” for the Republican challengers to DAPA and DACA+ — to the contrary, a divided court would create many opportunities for supporters of deferred action. But Abbott is correct that a split would mean that the “broad-based application across the United States” of the injunction would be left in serious legal jeopardy.
The question then becomes, how would the national injunction actually begin to crumble, under the 4–4 split scenario?
Its demise would likely have to start with the Justice Department taking bold and affirmative action to get DAPA and DACA+ back on track. While the Obama Administration has argued that the injunction should be limited to the 5th circuit, it has never questioned its national scope. But if the Supreme Court deadlocks, the Administration’s relative silence about the national scope is likely to end. The administration could — and should — challenge the applicability of Hanen’s order outside the 5th circuit. It could do so by filing declaratory judgment actions in U.S. district courts in states such as California and Washington, which made clear their opposition to Hanen’s views in briefs submitted to the Supreme Court. The Department of Justice might argue, as it did in the lower courts, that Hanen’s nationwide injunction is overly burdensome:
The district court’s injunction is drastically overbroad and thus is invalid even if some injunction were warranted. Twenty-four States, the District of Columbia, and the U.S. territories are not parties to this action, and a dozen States participated as amici below to oppose plaintiffs’ challenge and demonstrate the adverse effects of the district court’s injunction. Yet the district court enjoined the Guidance on a nationwide basis, barring implementation in States that do not oppose the policies set forth in the Guidance and even in States that actively support them. In these circumstances, a nationwide injunction is a manifest abuse of discretion. An injunction “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.
The results of such a challenge might vary. Different judges in different courts within different circuits might come to different conclusions about the national applicability of Hanen’s injunction, ultimately creating a patchwork of results across the U.S. Again, Ian Millhiser:
Where things get complicated is if the Justice Department successfully obtains an order from a different circuit upholding the program, or if an immigrant who hopes to benefit from the program obtains a similar order. The Fifth Circuit is among the most conservative courts in the country, and it is unlikely that every circuit will follow its lead. In that case, there will be competing court orders holding the policies both legal and illegal, and no possibility of Supreme Court review. It is not immediately clear what happens in such a case.
While it’s hard to predict how various district courts and circuits will rule, it’s quite possible that many, if not most, courts will permit the implementation of DAPA and DACA+ within their jurisdiction. As I wrote in a post earlier this month:
Needless to say, things could get complicated. No doubt the legitimacy of Hanen’s “national injunction” would be challenged by governors and attorneys general, along with immigrant advocates, who will head to federal courts to allow implementation of DAPA. No doubt the ensuing litigation will be chaotic. All of this would limit the ability of Judge Hanen to thwart the program if the case eventually returns to his courtroom.
Nor are challenges to the nationwide injunction necessarily limited to actions by the administration. One can imagine a variety of scenarios where states and individuals might have standing to challenge the injunction in other circuits in an effort to unfreeze DAPA and DACA+. In fact, several states, including California, Washington and Connecticut, have expressed a clear interest in ending the injunction in their states. As they vehemently argued to the lower courts:
Although the district court’s injunction should be stayed in its entirety for the reasons stated above, in the alternative the amici States ask that the Court stay the injunction outside of Texas, or at least outside of the Plaintiff States. As detailed above, in light of the complete absence of even a claim of harm in the non-Plaintiff States, there is no basis for forcing the injunction on us.
While there’s a lot of uncertainty about what could happen in the event of a 4–4 split by the Supreme Court, one thing is very clear: advocates for immigrants are likely to use every tool at their disposal to make sure DAPA and DACA+ are implemented outside the 5th Circuit. That will include bringing political pressure on the Obama Administration to leave no legal stone unturned in an effort to implement DAPA and DACA+ where possible.
There’s also some certainty about another element of this case — that the Republican Party’s association with this lawsuit is likely to hurt them politically during this November’s elections. Fitting alongside the comments of the likely Republican standard bearer, who has slandered Mexicans (and many others) and called for mass deportation, the GOP’s attempts to block and overturn DAPA and DACA+ are helping to further tarnish the Republican Party’s brand among Latino voters, as new polling shows. Ironically, in the end, the Republicans’ shameless political lawsuit against DAPA and DACA+ may help lead to an electoral outcome that could, perhaps, lead to some real progress on immigration reform.