Bitter, partisan 4-4 ruling is on the cards over immigration, showing just how broken the system is

[swag]

http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2016/04/supreme_court_headed_for_4_4_tie_on_obama_immigration_plan.html

By Dahlia Lithwick

Last week, Sen. Orrin Hatch penned an op-ed suggesting that Democrats were trying to “deceive voters” with disingenuous claims “that the Supreme Court cannot function properly with fewer than nine justices on the bench.” After calling Democrats liars in various colorful ways, he concluded that “[t]he Senate’s determination to wait until after the election to consider a nominee will in no way impede the business of the judicial branch.”

Maybe. Or maybe the judicial branch is about to get karate chopped in the face by the ugliest political fight of the year. Arguments on Monday in United States v. Texas, the partisan challenge to Obama’s executive actions that would have allowed more than 4 million undocumented immigrants to remain and work in the United States, certainly suggest a 4-4 tie is not just in the cards but also highly likely. Such a ruling would choke both the executive branch and the court, without affording much clarity or direction about the real scope of executive powers. Have fun with all that, Sen. Hatch.

The challenge in this case effectively asks whether President Obama’s 2014 tweaks to Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expansion of the Deferred Action for Childhood Arrivals program (DACA) exceed his authority. Obama issued these actions in response to congressional gridlock on immigration reform. The idea was that since Congress will not fund the deportation of the 11 million deportable immigrants, the administration would reserve deportation for dangerous offenders and allow others to temporarily remain, and to legally work.

But Texas and 25 other Republican-led states sued and had the executive actions blocked. The argument was that those actions exceed the president’s legal authority and that Texas suffered injury from them because the state issues drivers’ licenses to the beneficiaries of the program.

Obama supporters had hoped that this latter question—whether Texas’ voluntary granting of drivers’ licenses conferred the state with legal “standing” to come into a courtroom—would be a preferable escape than the prospect of a 4-4 tie. A tie would have the effect of upholding the nationwide injunction issued by a single district-court judge in Texas, until the case gets resolved on the merits. The case can then go back to the lower court and other cases can progress in other states. The clock would eventually run out on DACA. New courts and Congresses and presidents can fail to fix immigration for years to come. Again, how’s that working out for you, Sen. Hatch?

. . . go read the whole thing. It's really good.

[Downwinder]

1. Is 4-4 any more broken than 5-4?

We complain here about all of the 4-3 jury decisions.

[Igel]

2. I think of it as displacement.

We won't like the outcome of the tie, therefore it's the fact of the tie that's the issue. We assume that in the absence of the tie we'd benefit, whatever that means.

At the same time, a 4-4 tie is preferable to having Scalia there when the tie lets stand a lower-court ruling that benefits us. We like the outcome of the tie, and it's the outcome that matters, not the fact that there's a tie.

We displace a lot. There's a "white boy saying racist things on a video" thread where the outrage is probably not so much that some anonymous white kid's racist but that the kid goes to a high-priced private school. It's not the racism per se, it's the privilege. If he were privileged and racist, OR privileged and violent, OR privileged and drunk, we'd be outraged. If he were a poor violent (and) drunk racist, we'd be much less outraged. We say it's racism, but it's probably at least as much privilege.