In 2014, President Barack Obama signed 12 executive orders directing various agencies in the departments of State, Justice and Homeland Security to refrain from deporting some 4 million adult immigrants illegally present in the United States if they are the parents of children born here or legally present here and if they hold a job, obtain a high-school diploma or its equivalent, pay taxes and stay out of prison.
Unfortunately for the president, the conditions he established for avoiding deportation had been rejected by Congress.
In response to the executive orders, 26 states and the House of Representatives sued the president and the recipients of the orders, seeking to prevent them from being enforced. The states and the House argued that the president effectively rewrote the immigration laws and changed the standards for the deportation of unlawfully present adult immigrants.
The states also argued that because federal law requires them to offer the same safety net of social services for those illegally present as they do for those lawfully present, the financial burden that the enforcement of those orders would put upon them would be far beyond their budgetary limits. Moreover, they argued, enforcement of the president’s orders would effectively constitute a presidential command to the states to spend their own tax dollars against their wishes, and the president lacks the power to do that.
In reply, the president argued that the literal enforcement of the law creates an impossible conundrum for him. He does not want to deport the parents of American children, as that destroys families and impairs the welfare of children; and he cannot deport children who were born here, as they are American citizens. Hence his novel resolution.
The case was filed in Texas, where a federal district court judge agreed with the states and signed an order that prohibited the feds from enforcing the president’s orders, pending a full trial. The feds appealed.
The U.S. Court of Appeals for the 5th Circuit in New Orleans upheld the injunction against the president. In so doing, it agreed with the states that the financial burden on them that would come from the enforcement of these executive orders would be unconstitutional. It also agreed with the House of Representatives that the president exceeded his authority under the Constitution and effectively rewrote the laws.
This week, the Supreme Court heard the feds’ appeal. Because the seat formerly occupied by the late Justice Antonin Scalia for 30 years is still vacant, the court has just eight justices — for the most part, four conservatives and four liberals. A tie vote in the court, which appears likely, in this case, will not set any precedent, but it will retain the injunction against the president. The most recent time this happened was 1952 when the court enjoined President Harry Truman from seizing steel mills during the Korean conflict.