Last week, the Supreme Court issued its (non)-decision in Texas v. United States. At issue: whether one judge in Texas could enjoin a federal immigration program crafted by the Executive Branch, and whether the Executive Branch had exceeded its authority in so doing. I wrote about this case earlier this year, predicting a 4-4 split with the current court one justice down. Unfortunately, my prediction was borne out.
The Fifth Circuit—specifically one judge, Judge Andrew S. Hanen (who was recently accused of abuse of discretion when he imposed sanctions on federal government attorneys whose arguments he didn’t like)—had earlier decided that the State of Texas had established a substantial likelihood of success on the merits of their procedural and substantive claims required for an injunction. What is unusual in this case is that a district judge’s preliminary injunction applies nationwide (and not, as would ordinarily be the case, in the judge’s district only).
While the Court’s non-decision today has no precedential value, as a practical matter, it upholds a nationwide preliminary injunction against enforcement of the Deferred Action for Parents of Americans (DAPA). Until or unless the Fifth Circuit decides to hear the case on the merits, the injunction will remain in effect.
Another practical effect is that 4 million undocumented parents of citizen children will continue to live in the shadows, fearing deportation, with their families split apart. This is a huge victory for the anti-immigrant movement, and arguably a huge loss for the United States. On the bright side, the original Deferred Action for Childhood Arrivals (DACA)—the Executive Action allowing millions of undocumented children to come (temporarily) out of the shadows, to work and go to school—remains in effect.
We don’t know the justices’ particular positions on the particular issues raised in the underlying case challenging the injunction (standing, procedural issues) because, as is customary for a 4-4 split, the decision simply says that “[t]he judgment is affirmed by an equally divided Court.” Still, this appears to be one of those cases where a missing judge matters.
The government may petition the Court for rehearing after a ninth justice is confirmed, or the Fifth Circuit may hear the case on the merits, though neither of those is likely to happen before the elections in November.