In one of the most important cases of the year, the Supreme Court was unable to decide.
Thanks to the unprecedented stalling of President Obama’s nomination of Merrick Garland to the Supreme Court, the short-staffed, broken, and divided court reached its first major deadlock today, tying 4-4 in U.S. v. Texas, a case challenging Obama’s executive orders on immigration.
The entirety of the Court’s holding is one sentence: “The judgment is affirmed by an equally divided Court.”
In practice, this means that the injunction against the Obama order remains in place while a federal district court adjudicates the case on its merits. Translation: Obama loses, and undocumented immigrants will continue to be deported (which they have been in record numbers).
This is a travesty of justice, perpetrated by the Republicans in the United States Senate. No previous filibuster, delay, or political game has ever denied the Supreme Court its full membership for this long. No customary rule or practice has ever stalled a nomination beginning in March of an election year. And while conservative pundits may be as delighted by the effects of the Court’s deadlock as they are on blocking a qualified judge from joining the Supreme Court, true patriots should hang their heads in shame.
Because this is what broken government looks like.
"Republicans in Congress currently are willfully preventing the Supreme Court from being fully staffed and functioning as our Founders intended," Obama said at the White House. "And today’s situation underscores the degree to which the Court is not able to function the way it's supposed to. "
It’s not surprising that the first high-profile deadlock—there have been other 4-4 ties in lesser cases—came in U.S. v. Texas, a case whose very name perhaps reflects the divisions within our country at large. There were two major questions in play: first, whether President Obama exceeded his executive authority in issuing the orders, and second, whether Texas has standing to sue the federal government to block them.
And now the answer is: we don’t know.
The case was on appeal from District Judge Andrew S. Hanen of Brownsville, whose 123-page injunction order was a masterpiece of activist judging filled with right-wing talking points about the evils of illegal immigration. Since everyone knew the case would be appealed in the end anyway, the parties cut to the chase and appealed the preliminary injunction. The Fifth Circuit Court of Appeals upheld the injunction, bouncing the merits of the case up to the Supreme Court. Which has now done nothing.
So, the injunction remains in place, and the case now goes back to Judge Hanen. That adjudication process will take many months—the next hearing in the case is set for August 22—and will likely outlast Obama’s time in office. And then, of course, it will be appealed, whoever wins, thus repeating the process that has just led to stalemate.
In some ways, the practical effects of the non-ruling are most acute for the 4 million undocumented immigrants who would have been shielded from deportation under the Obama orders, but are now back on the deportation list. It’s not like anyone’s suddenly about to be deported as a result of the Court’s deadlock. Of the 11.3 undocumented immigrants in America, Congress has only provided funds for “removing” around a third of them. Really, what the Obama orders did was set administrative priorities for who should be removed first.
But the injunction against those orders means that chaos reigns again in terms of who stays and who goes.
To be sure, immigration is now a central issue in the 2016 election, with one candidate promising to immediately deport all 11.3 million (though without any details as to how).
But to call the Court’s deadlock a good result is to misunderstand its role in our democracy. Unlike immigration policy, the boundary of executive power is not a political issue. It is a constitutional one. Whatever one feels about the rightness or wrongness of Obama’s executive orders, today’s inaction is a grievous failure of our system of government.
Yes, “let the people decide” questions of politics. But Article I of the Constitution is not up for a popular vote. Nor is the Bill of Rights. Nor is the Equal Protection Clause. Under our system of government, these are judicial, constitutional questions that are to be decided by judges, and ultimately by the Supreme Court.
It’s easy to miss that distinction in the fiery haze of partisan punditry. Most coverage of U.S. v. Texas depicts it as an “immigration case.” Well, sort of, but really, it’s a case about what a president can and can’t do. Likewise, the pending case on abortion, Whole Women’s Health v. Texas, is partly an “abortion case” but actually a “due process case,” about when a state may limit a citizen’s basic civil rights.
But in the hyper-partisanship of the current Republican Party, there’s no distinction between politics and law. That’s why so many GOP SenatorsRepublican senators felt betrayed by Chief Justice Roberts’s rulings on Obamacare. We hate Obamacare!, they screamed. Those decisions are terrible!
But those decisions weren’t about whether Obamacare is a good thing or a bad thing. The first one was about the U.S. Constitution, and whether the federal government has the power to compel individuals to purchase health insurance. And the second one was about how to interpret an ambiguous statutory provision, and how judges should read the laws that Congress passes.
Likewise, though liberals have decried the Supreme Court’s decision that the Second Amendment protects gun rights, they at least seem to understand that that question is distinct from whether gun control is a good idea or not.
This should all be Civics 101. And yet the distinction between what a politician does and what a judge does seems lost on conservatives, who have decried the Roberts Court—a court led by a judicial and political conservative – as hopelessly political. As if ruling on the Constitution were somehow a “political” act, rather than precisely what the Supreme Court was designed to do.
Now, that design has failed, thanks to the concerted efforts of the modern GOP and its anti-government mega-funders to undermine the court system and break down government itself. They have, as they have long tried to do, broken the courts.