US high court’s one-line ruling only a temporary defeat for DACA+

“The judgment is affirmed by an equally divided Court,” this is the one-line ruling of the highest court of the land in the much awaited decision on Obama’s Executive Action on DACA extension and DAPA program. After more than two years of waiting for the injunction to be lifted on the programs and looking forward to a decision on the merits, immigrant rights supporters were disappointed when the Supreme Court laid out its ruling in a deadlock vote of 4-4. But it’s only a temporary defeat; there are still legal ways to move forward with the executive action.

Jose Antonio Vargas, a Filipino national, is the most outspoken advocate of the DREAM Act and the Deferred Action for Childhood Arrivals (DACA). In 2012 when President Obama announced the DACA program for the first time, he was not included on the list of those qualified to apply even if he was only 12 years old at the time of his arrival in the US. The first DACA program in 2012 included a requirement that the applicant must be below 31 years old at the time of the application for deferred action under DACA. Jose just turned 31 years old in 2012 and lost the opportunity to apply for DACA.

His hope of getting temporary relief under DACA was revived when in 2014, President Obama announced the DACA+ and the DAPA executive actions. For the DACA+ program, the age ceiling of 31 years old was eliminated, maintaining only the minimum age requirement of 15 and below at the time of entry into the United States. Jose would have qualified, but the anti immigrants would not allow the DACA+ and the DAPA program to push through. Conservative states filed a lawsuit against the Obama administration, and a 5th District Court Judge issued an injunction against its implementation.

The litigation reached the Supreme Court, and there was a hearing on the merits. Unfortunately, on June 23, 2016, the Supreme Court did not issue a decision, but rather announced a per curiam ruling stating that the court was divided and that the judgment of the lower district court is affirmed.

The arguments in favor of the DACA+/DAPA Executive Actions seemed to make more legal sense during the hearing. It obviously did not turn out that way. The split in the evenly divided Supreme Court shows the sharp ideological divide between the factions in it. The feeling is that it is a politicized court with an ultra-conservative right and a liberal left-wing faction. Had Justice Scalia not passed away recently, the conservatives would have had a clear victory. On the other hand, had Congress done its job and voted on President Obama’s replacement for Justice Scalia’s seat in the Supreme Court, it would not be inconceivable that the DACA+/DAPA Executive Actions would have been upheld.

To put this in perspective, this is only a temporary defeat for the immigrants. There are still legal ways to move forward with Executive Action as no decision on the merits was issued. But to initiate a new action would take time, which the current president no longer has. Come November 7, a new president will be elected. Whoever is elected as the next president gets to nominate the next Justice for the Supreme Court vacancy. That single appointment can tip the balance of the Supreme Court’s ideological divide to the left (or to the right) for years and years to come; hence, the importance of voting for the right president in the coming November election.

(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, [email protected] , facebook.com/tancincolaw, or through her website www.tancinco.com)