Policy

Supreme Court's Take on Immigration Raises Election Stakes

No matter how the decision goes, it will be used as campaign fodder by both sides

DAPA supporters rallied in front of the Supreme Court in November. (Al Drago/CQ Roll Call file photo)

The Supreme Court steps into the partisan stalemate over the nation’s immigration policies next week, but the justices are unlikely to create any immediate political pressure for the Republican-led Congress to move immigration legislation.

Instead, the oral arguments Monday in the challenge to the Obama administration’s latest immigration executive actions — as well as a decision in the case expected in June — will heighten the stakes on the issue leading up to the Nov. 8 elections.

And who is in the White House next will ultimately matter more for the political reality facing lawmakers.

“However the court decision goes, this allows both parties to chew on the issue and use it for election purposes,” said Doris Meissner, director of U.S. immigration policy at the non-partisan Migration Policy Institute. “After the election, it’s a whole different thing.”

The legal fight is over actions President Barack Obama announced in November 2014 that aimed to defer deportation for undocumented immigrant parents of U.S. citizens and legal residents under a program known as DAPA. The actions would also expand a similar program, known as DACA, for undocumented immigrants who came to the United States as children.

Texas and 25 other states challenging the executive actions say the Obama administration overstepped its authority by granting the undocumented immigrants a legal status that gives them work authorization and other government benefits. A lower court ruling has stopped implementation of the actions that affect 4 million undocumented immigrants.

The Obama administration will need to win over at least one conservative justice on the shorthanded, eight-member court. If the liberal and conservative wings split 4-4 in the case, the tie would leave in place that lower court ruling that would prevent implementation of the executive actions.

This much is certain: The Supreme Court’s arguments and decision will help frame the immigration debate as a presidential election issue ahead of the party conventions in July and in the general election.

Election outcome is key

Leading Republican presidential candidates Donald J. Trump and Sen. Ted Cruz of Texas have both voiced opposition to Obama’s executive actions and have vowed to rescind them even if the high court allows the administration to implement the actions. 

On the Democratic side, candidates Hillary Clinton and Bernie Sanders, the independent senator from Vermont, support the executive actions. Both have said they would try to make even more sweeping changes to immigration law if elected. They could try to address similar concerns about deportations and the status of undocumented immigrants living in the shadows in a different way if the Supreme Court strikes the actions down.

“Regardless what the court does here, the next election will really decide the fate of this immigration policy,” said Josh Blackman, a law professor at the South Texas College of Law in Houston, who filed a brief in the case supporting the challenge to the immigration actions. “It’s not that the case won’t matter, but the outcome of this policy very much hangs in the election.”

As this year’s topsy-turvy presidential election has proved, predictions are difficult at best. Much depends as well on whether Republicans can maintain control of the House and Senate, and how strong majorities are in each chamber.

Congress would face the most pressure to act if the Supreme Court upholds Obama’s executive actions and a Democrat is in the White House, said Meissner, a former Immigration and Naturalization Service commissioner. That is particularly true because Clinton and Sanders have said they would make a rewrite of immigration laws one of their top priorities in their first 100 days in office.

Republicans would view a win at the Supreme Court as ratification of their tough on immigration stance, Meissner said.

Either way, Speaker Paul D. Ryan, R-Wis., will be a key player because of his views on immigration and his previous support for overhaul efforts.  Unlike many in the Republican Party, Ryan has been open in the past to some form of legal status for the estimated 11 million undocumented immigrants already living in the U.S.  But the speaker and Senate Majority Leader Mitch McConnell have vowed that a comprehensive immigration bill will not move while Obama is in office. 

GOP divide

A Republican Congress could take up limited overhauls as long as they are paired with some kind of heavy enforcement measure, Meissner said.

While the outcome of the Supreme Court case will affect the status of four million undocumented immigrants under DACA and DAPA, it won’t strike at the heart of the legislative disagreement about what the country should do about the other immigrants who arrived in the U.S. illegally and continue to live here.

And on that issue, there’s still a wide gap between Republicans and Democrats, and a divide in the Republican Party. Many Republicans view legal status or a pathway to citizenship for undocumented immigrants as amnesty for lawbreakers. 

“I don’t see any way of creating the political space for legislation until a president earns the right to make that argument to the public, by which I mean is seen as credible in enforcing the law now,” said Mark Krikorian, executive director of the Center for Immigration Studies, a group that favors tighter immigration controls.

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