In a short June 23 order, the Supreme Court dashed the hopes of millions that the justices would overturn the injunction blocking implementation of Deferred Action for Parents of Americans (DAPA) and expansion of Deferred Action for Childhood Arrivals (DACA). The one-sentence indication that the lower court decision was affirmed by “an evenly divided court” obscures numerous failures to perform governmental duties consistent with the reasonable expectations of the populace. A cryptic order masks responsibility – to the entire nation and, in particular, to the millions of immigrants and supporters represented by those who amassed outside the Supreme Court on argument day in United States v. Texas.
This hidden accountability comes unexpected from a Court that, under Chief Justice John Roberts, has become known in part for its decisions that seem to strategically skirt significant political backlash in the most highly-charged cases, such as those involving the Affordable Care Act. In a case that involved an unprecedented public showing of support for the President’s exercise of executive authority in DAPA and expanded DACA, the Court instead, through its inaction, left in place a preliminary injunction in highly partisan, politicized litigation involving 26 state governments – most led by governors from one party – against a president from the opposite party.
Despite this obscured accountability, the millions of people most aggrieved by the non-decision will certainly soon turn from disappointment to political activism. As they do so, they will aim their opposition at those responsible for this serious, albeit temporary, setback to efforts at more humane, efficient, and uniform immigration enforcement practices nationwide. Here are some of the political dragons whose failure to perform assigned duties lies hidden behind the Court’s order.
First are the justices themselves, in particular those believed to have voted to affirm the injunction. The one-line order means that justices are neither required nor expected to explain their reasoning, including how it squares with previous written opinions or dissents in cases raising similar issues. In ordinary cases, justices craft an individual jurisprudence as they explain their views, by writing or joining a majority or dissenting opinion, on the issues in a case and how those views relate to prior Court opinions, including those they themselves authored.
In this case, without that written reasoning, there is no explanation, for example, of how Chief Justice Roberts concluded that Texas had standing – the right to bring a case – based on the speculative costs of providing subsidized drivers’ licenses to DAPA recipients, despite his previous well-established skepticism about states’ standing to challenge federal actions, as expressed in his previous written decisions.
In addition, the justices have not explained – and this information gap may never be filled – why they waited more than two months after argument to issue their one-line order. Many supporters of DAPA and expanded DACA, consistent with the wisdom of longtime court observers, believed optimism warranted after passage of so much time. Indication of an “evenly divided court” does not require the time for review and editing of opinions that a decided case requires. These are the issues that critics may raise in relation to the Supreme Court as dismay turns to political action.
Equal if not greater responsibility for last week’s order lies with the leadership of the United States Senate, which has shirked its constitutional responsibility to review and vote upon the President’s nominee to the ninth seat on the Court for some time. President Obama nominated Merrick Garland over a full month before the oral argument in United States v. Texas, more than enough time for the Senate, acting with appropriate alacrity, to seat a ninth justice to hear and participate in deciding this critical case. The resistant Senate leadership’s dereliction of duty will not go unnoticed by community activists aggrieved by the Court’s non-decision on such an important matter as deferred action.
Finally, the 26 plaintiff states and their elected leaders cannot long avoid public responsibility for the continued blockage of DAPA and expanded DACA following the indication of an evenly divided Court. This lawsuit marks an unprecedented politicizing of the courts by states that are well represented in the federal Congress, which could, should it so desire, act immediately to restrain any exercise of the President’s constitutionally endowed discretion in enforcement of federal law, including immigration laws. Yet, rather than follow that legislative route – no doubt cognizant of the extreme difficulty of getting the support needed to block the President – the 26 states, led by Texas, chose to take to the federal courts to attack the President’s use of well-established executive authority.
The deeper problem is that the 26 states undertook this political litigation with scant attention, much less analysis, of the overall best interests of their residents, including those families with members who might be eligible for the important, though temporary, relief afforded through deferred action. The thin record of injury presented in court against DAPA and DACA, as well as the implicit demonization of long-term immigrant residents in pursuing the case, exemplify this inattention to states’ own best interests.
History has shown the effects of similar efforts by state leaders. California politics permanently changed, in part through backlash against the anti-immigrant 1994 ballot initiative, Proposition 187. More recently, Arizona has seen a growing Latino civic participation and activism following the notorious SB 1070. The 26 plaintiff states may see similar activity as disappointment transforms into efforts to hold politically accountable those responsible for the Supreme Court’s one-line affirmance.
Historically, Supreme Court decisions on momentous issues have triggered political backlash – both genuine opposition and opportunistic resistance. The level of interest and involvement by so many people in support of DAPA and expanded DACA might make United States v. Texas the first non-decision to catalyze a sustained and significant backlash. If so, these are the leaders most likely to be the focal points of political accountability – for failing to perform expected duties.
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