The Long Road to Immigration Reform
The Supreme Courtfs decision this week kicks the can to 2017.
Josh Eidelson, Karen Weise
June 30, 2016 — 7:00 AM EDT - Bloomberg
A deadlocked Supreme Court has effectively squashed any chance of significant
immigration reform before President Obama leaves office in January. On June 23,
a 4–4 vote by the justices left in place an
injunction blocking Obamafs plan to shield from deportation millions of
undocumented immigrants whose children are U.S. citizens or legal residents. The
plan would also have allowed those immigrants to apply for work permits. The
courtfs decision returned the issue to U.S. District Judge Andrew Hanen, who in
February blocked the program from going into effect nationwide while he
considers a challenge from 26 states led by Texas, which objects to paying
associated costs.
The estimated
3.6 million undocumented immigrants who would have qualified under the
program, known as Deferred Action for Parents of Americans, remain in limbo. So
do their employers. Business groups submitted two
amicus briefs in support of DAPA to the Supreme Court.
Bob Donegan, president of the Seattle-based restaurant chain Ivarfs, joined
one
of the briefs. When he began using the governmentfs E-Verify system to check
employeesf immigration status in 2014, Donegan learned that 109 of his 1,200
workers were undocumented. gThere were people who had worked for us for 20
years,h he says. gThese people are great employees. We know their kids. We know
their parents. It is not fair for these people not to be included in having the
right to work.h He let them go but offered to cover their lawyersf fees if they
applied for residency. Nine have since gained legal status and come back to
Ivarfs. Says Donegan: gEvery one of the nine has been promoted into a management
job, and we have another 30 pending.h
The Obama administration has until late July to petition the court for a
rehearing, but it hasnft indicated
whether it will. Hanen has scheduled a status conference with lawyers for Aug.
22, after which hefs expected to set a timetable for hearing the case in his
Brownsville, Texas, courtroom. That will open the next phase of wrangling over
the fate of about a third of the estimated
11 million undocumented immigrants in the U.S.
Congress has spent more than a decade debating immigration reform. It has
repeatedly failed to pass legislation and has showed no appetite to try again
before the November election.
No one expects the Obama administration to succeed in persuading Hanen to let
DAPA proceed. The judge, an appointee of President George W. Bush, has sparred
with Justice Department lawyers, even barring some from representing the
government in this case. Hefs said he may order Justice Department attorneys
making court appearances in any of the states that are part of the DAPA lawsuit
to take mandatory ethics classes. Hanen has also indicated he may force the
federal government to hand over the names, addresses, and other contact
information for thousands of people who signed up for an earlier Obama program,
Deferred Action for Childhood Arrivals.
Federal courts have allowed DACA, which gives some undocumented immigrants
who came to the U.S. as children protection from deportation, to move ahead
despite repeated challenges. DAPA supporters could challenge Hanenfs nationwide
injunction against it in other, more liberal circuits, like the Ninth, which
covers California. gOne could imagine that there will be judges in other parts
of the country that donft think itfs proper for law for the entire country to be
set by a single district court judge,h says Brianne Gorod, chief counsel for the
Constitutional Accountability Center, a public-interest law firm and think tank
in Washington.
If Hanen rules against DAPA, the Obama administration could appeal the
decision back up to the Supreme Court. Yet the case could stretch into next
year, and regardless, the bench will likely remain split until a ninth justice
is appointed to fill the seat left vacant by the death of Justice Antonin
Scalia. Senate Majority Leader Mitch McConnell has refused to confirm anyone until a new president
is sworn in. gYou have a serious case with huge national impact that the court
could not decide based on staffing issues, basically,h says David Leopold,
former president of the American Immigration Lawyers Association.
Hillary
Clinton has pledged to proceed with DAPA if shefs elected and would be
expected to nominate a liberal justice to Scaliafs seat. Clintonfs likely
opponent, Republican Donald
Trump, called DAPA gone of the most unconstitutional actions ever undertaken
by a presidenth and has said hefd deport undocumented immigrants if elected.
Although the immigrants directly protected by DAPA canft vote, their U.S.
citizen children can. gFor the community that is impacted by this, it is life
and death,h says Ben Monterroso, executive director of Mi Familia Vota, which
registers Latino voters. He says young people are becoming particularly engaged
in this yearfs election: gIf they donft have parents at risk of being deported,
they have friends and relatives who are.h After the Supreme Court opinion was
released, activists blocked
a thoroughfare in downtown Phoenix. Four were arrested.
Some advocacy groups are urging the White House to do what it can now in the
absence of DAPA, including curbing border raids and allowing more migrant
detainees to post bond. Says Marisa Franco, a Phoenix community organizer who
last year co-founded Mijente, a Latino advocacy group: gIf there is no relief,
then the administration shouldnft be throwing the book at immigrants.h
The bottom line: The fate of a program to deal with
millions of undocumented immigrants in the U.S. probably wonft be determined
before the election.