“This is a very long delay, but it’s not a final decision,” said Angela Kelley, a senior vice president at the left-leaning Center for American Progress and a longtime advocate of immigration reform.
The outcome for immigration policy already hinged to a large extent on the 2016 election, and the Supreme Court’s inability to rule definitively lends even more weight to the choice in November. While Donald Trump has campaigned against offering legal status to the 12 million people estimated to be in the country illegally, Clinton has, like Obama, vowed to pursue comprehensive reform legislation in Congress and take executive action to protect those people from deportation if the House and Senate fail to act. The former secretary of state has also said she would go beyond the policy pursued by Obama to include the parents of so-called Dreamers who were brought into the U.S. illegally as children. Had Justice Antonin Scalia lived for a few more months, it is likely that the high court would have struck down Obama’s program entirely and foreclosed the possibility that Clinton could carry out her plans.
Whether she has that opportunity next year now depends not only on her election but on her ability to swiftly win Senate confirmation of a justice likely to rule favorably on her authority over immigration policy. And until there is a more definitive ruling, any executive action along the lines of what Obama tried to do is impossible. “Practically-speaking, you’d have to have this whole situation resolved before any new president could take similar steps,” said David Leopold, an immigration lawyer and reform advocate. Tom Jawetz, the vice president of immigration policy at CAP, said the Obama administration could, within the next few weeks, ask the Supreme Court to rehear the case next year, but there almost certainly won’t be another ruling before he leaves office.
In their statements responding to the decision, Democrats including Obama and Clinton emphasized the deadlock caused by the vacancy on the court. “Today’s decision by the Supreme Court is purely procedural and casts no doubt on the fact that DAPA and DACA are entirely within the president's legal authority,” Clinton said. “But in addition to throwing millions of families across our country into a state of uncertainty, this decision reminds us how much damage Senate Republicans are doing by refusing to consider President Obama’s nominee to fill the vacancy on the Supreme Court.”
Obama also stressed that the decision has no impact on the Deferred Action for Childhood Arrivals program, which shielded immigrants brought illegally into the U.S. as children from deportation. Nor does it invalidate the administration’s late-2014 decision to change its enforcement priorities so that most of those immigrants who would have been able to come forward legally under the DAPA program won’t face deportation as a practical matter. “They will remain low priorities for enforcement,” Obama said. “As long as you have not committed a crime, our limited immigration enforcement resources are not focused on you.”