Demonstrators outside the Supreme Court Thursday, after the court delivered a blow to President Barack Obama's immigration program. Photo by Xinhua/Yin Bogu via Getty Images
President Barack Obama's executive orders to grant deportation relief and work permits to millions of undocumented immigrants suffered a debilitating setback Thursday, when the Supreme Court deadlocked on a case that might have allowed the proposals to move forward.
Here's what happened: In November 2014, the president announced a series of immigration actions that stretched his executive powers to "the fullest extent," as one senior official put it at the time. The centerpiece of the plan were measures that would allow an estimated 3.9 million undocumented immigrants to apply for work permits and remain in the country without fear of deportation. The bulk of those immigrants were parents of children with US citizenship or permanent residence, who would have applied through a program known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. Others would have qualified for deportation relief through an expansion of the Deferred Action for Childhood Arrivals, or DACA, program, which applies to non-citizens brought to the US as children.
Since then, Republicans have repeatedly insisted that the move overstepped Obama's presidential authority. In December 2014, 17 GOP-controlled states filed a federal lawsuit against the White House, challenging Obama's executives actions, and just a few months later, .a federal judge ruled to temporarily block the deportation relief measures while the case moved forward. The Obama administration appealed the decision, requesting courts lift the hold, but in May 2915 the US Court of Appeals for the Fifth Circuit in New Orleans denied the request.
Related: A split Supreme Court just derailed Obama's deportation protections
Hopes of saving the program during Obama's tenure vanished Thursday, after the high court deadlocked 4–4 on the issue. Since Republicans have blocked the appointment of a ninth justice to replace Antonin Scalia, who died in February; the tie means the lower court ruling, which blocked the program from going into effect, will remain in place.
With so many twists and turns, the legal battle can be difficult to understand: Does the Supreme Court decision mean the program is definitely dead? What happens to the would-be recipients of DAPA or DACA? To explain the situation, we spoke with Ignacia Rodriguez, an immigration policy advocate at the National Immigration Law Center. The text of conversation is below, edited for clarity, length, and grammar.
VICE: What's the biggest outcome of the Supreme Court's decision on the Obama administration's immigration platforms?
Ignacia Rodriguez: The four-four tie means that an injunction that was issued by the Fifth Circuit Court of Appeals remains in place. The DAPA program would provide relief for many families and parents of US citizens in this country, but now they cannot apply for these programs. Right now, we're really processing the emotional toll that this decision has created. People were really hopeful, they hoped these programs would be implemented soon, but this decision ultimately means that the programs will remain blocked.
Does it make a difference that the ruling was a four-to-four tie, versus if there were nine justices and they had ruled five to four on this?
We believe it does, and that's why we're urging the Department of Justice to seek a rehearing. This is such a critical matter and the fact that they only got to a four-four tie means that they weren't in a place to be able to make such a powerful and important decision.
You think that this needs to be heard again. Is there a legal reason for that?
Well, there's always the option of seeking a rehearing, and situations like this—where you don't have a full court—is enough to seek a rehearing. We want to try everything possible to make sure that this case can move forward and can one day hopefully result in the implementation of DAPA and expanded DACA.
For now, what does this ruling mean for people who have deportation relief under DACA?
Fortunately, DACA continues to be in existence and people can continue applying for that program. Over 700,000 applicants have already received deportation relief through DACA.
Of course, upon hearing this news, a lot of DACA recipients were concerned because some of them do have parents who could have qualified for DAPA and have friends and fellow activists who could have applied for expanded DACA, so it obviously raised concerns for them—and tears and a lot of sadness—based on the people who I've had conversations with this morning. But, as for their DACA status, that doesn't change. They continue to have DACA, they continue to have work permits.
So there are roughly four million people who won't be able to get work permits now. Does this also mean that they're going to deported?
When the DAPA announcement was made in 2014, there was another announcement that came out at the same time that had to deal with the enforcement priorities set up by the Department of Homeland Security. They classified which groups of people they would prioritize for deportation. We find that the individuals that would have qualified for DAPA don't meet that criteria, so the chances of them being deported are slim. But we still know that some people do find themselves in deportation proceedings, even though they could be DAPA eligible, so that's always a possibility.
Is there a concern that there could be a chilling effect to applying for the initial DACA after hearing about the status of the newer program?
I guess only time will tell. We've seen people continue to apply no matter what the political climate is, and we hope people continue to. But we won't know until we see the next round of statistics.
Is this the end of the legal fight over DAPA?
No. The fight definitely continues. Communities have been advocating for programs like these for many, many years and everyone is geared up and ready to continue with that fight.
In addition, there's a lot of brainstorming going on right now—what are the possible next steps, is there any way to have the injunction be narrowed so it only includes, perhaps, the states that are suing, that are in that circuit. So all that is to be determined. But what I do know for a fact is that the fight definitely continues and people are gearing up for it.
Hillary Clinton had talked about expanding DAPA and building upon what already exists. But if the existing program is blocked, what happens now?
Well, even the president was asked, "Do you plan to do anything further for immigrants before you leave office?" and you know, he didn't even know what to say in response, other than he doesn't think that there's anything he can do at the time.
So similarly, we don't know. We heard both express an interest in expanding deferred action, but all of this is to be determined once the times comes.
And conversely, what could this mean if Donald Trump wins the election?
He has publicly stated that he opposes these programs, so my best guess would be that he would want to eliminate the possibility of DAPA being implemented. I wish I had a crystal ball, but I really don't know.
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