The Supreme Court's indecisive split on United States v. Texas, a case challenging President Obama's executive authority to grant deportation relief to more than four million undocumented immigrants, decided nothing about the legality of the programs even if it effectively stalled them for the remainder of his presidency. While some outlets are reporting that the court’s action essentially kills the programs, it’s more accurate to say that it blocks them presently while their future remains uncertain. (It also has no effect on Obama’s original deferred action program for DREAMers announced in 2012.)
Since the split left in place a nationwide injunction that was unilaterally issued by a federal judge in the Fifth Circuit on Obama's immigration programs—Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and Deferred Action for Childhood Arrivals (DACA)—that injunction will almost certainly invite legal challenges in other circuits, said immigration attorney and advocate David Leopold.
"There's a serious question today as to whether this national injunction holds,” he told me, “because all that happened today was the Supreme Court couldn't reach a decision, so by law it defaulted to the Fifth Circuit decision. That's all that happened. We have no national precedent, so there's no national precedent from the Supreme Court of the United States upholding what Judge [Andrew] Hanen did."
“What we have now is a situation where any number of challenges could be made to the national injunction,” he added.
Leopold mentioned California and New York, in particular, as states where challenges might originate since neither joined the GOP-led lawsuit against the administration and both, in fact, signed on to an amicus brief in support of the immigration programs. He added that challenges to Judge Hanen's ruling could come from individuals, states, or event the federal government.
In fact, Leopold hoped government lawyers would go straight back to the Supreme Court and ask for a rehearing on the matter rather than allowing the case to be kicked back down to Judge Hanen again.
"We have an extraordinary situation where the Senate has refused to even consider filling the court with a ninth justice. You have an extremely important decision, national in scope, with profound implications for millions of families, and you have a court that can't make a decision,” he noted, saying that should make the case ripe for to be reheard once the court is back to being fully staffed.
"If they do that, and it's successful," he said, "then you avoid going back to Hanen. And I think there's some serious questions—if not obvious answers—as to whether Hanen can even be impartial in this case."