Today the Supreme Court announced that it was deadlocked, four-to-four, on United States v. Texas aka the expanded DACA & DAPA case. As a result, Court issued a one-line non-decision that did not answer the vital question whether the president has the authority to set policy guidelines for the exercise of prosecutorial discretion in the deportation system.
In addition to deciding whether the president can set general guidelines for deferred action and the exercise of discretion to refrain from deporting an individual (temporarily); the Supreme Court was also expected to rule on when deferred action has been granted, can federal immigration officials exercise their statutory authority to grant employment authorization, so that those individuals can continue to support themselves and their families? According to the consistent practice of the executive branch, across administrations both Republican and Democratic, previously the answer to both questions has been “yes.”
But for now, based on a lawsuit by twenty-six states, the president’s exercise of this longstanding deferred action authority has been stopped. The decision of a single district judge, affirmed by two judges on the Fifth Circuit (over the dissents of two other Fifth Circuit judges in two separate appeals), will remain in place, leaving in limbo millions of parents of U.S. citizens and lawful permanent residents who met the eligibility requirements to apply for deferred action and work authorization under the president’s guidance.
But today’s decision/non-decision is likely not the last word. Whether the Justice Department files a petition for rehearing in the Supreme Court – and it very well could – the litigation will most likely continue.