By Richard Wolf

President Obama’s last-ditch effort to offer more than 4 million undocumented immigrants protection from deportation reaches a short-handed Supreme Court on Monday, but the eight justices may not have the final word.

A tie vote would hand a victory to Texas and 25 other states that have successfully blocked the program in lower courts, but it could unleash new challenges. States and cities who favor the program could try to fight the nationwide injunction imposed by a lone judge on the Mexican border and upheld by the nation’s most conservative federal appeals court.

“Basically, you’d have a judicial mess,” says David Leopold, an immigration attorney and former president of the American Immigration Lawyers Association. “You’d have absolute chaos in the courts.”

A ruling for Obama that allows millions of undocumented immigrants to apply for “deferred action” status and work permits could be short-lived if Donald Trump or Ted Cruz wins the White House and ends the program next year. And it could fuel future federal-state battles over executive actions.

“We’re going to see an executive who doesn’t really need to go to Congress in order to get changes in the law,” warns Michael McConnell, a former federal judge who heads the Constitutional Law Center at Stanford Law School.

The showdown over Obama’s immigration plan at the end of his second term is in many ways a mirror image of the battle over his health care law at the end of his first term. In that case, Chief Justice John Roberts handed the president a major victory by a bare 5-4 majority in the midst of his re-election campaign.

This time, the court is depleted following the Feb. 13 death of Justice Antonin Scalia and twice has deadlocked 4-4 in cases that affirmed lower-court rulings without setting a national precedent. A tie vote on immigration would uphold Texas’ victory at the appeals court, but the justices may seek to avoid that outcome.

Roberts and Justice Anthony Kennedy are the most likely to tip the balance, possibly by ruling that Texas does not have the right to sue the federal government over immigration policy based solely on the potential costs of issuing driver’s licenses to undocumented immigrants.

Obama unveiled the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program in 2014 as an extension of a similar program that has protected more than 700,000 undocumented immigrants brought to the country as children.

The new plan would broaden that program and add protections for up to 4.3 million adults with children who are U.S. citizens or lawful residents. Those who qualify could apply for work permits and a host of health care, disability and retirement benefits.

Texas went to court in 2014, charging that Obama lacks the authority to protect roughly one-third of the nation’s undocumented immigrants by executive fiat. District Judge Andrew Hanen blocked the program from proceeding while it was being challenged, and the U.S. Court of Appeals for the 5th Circuit upheld that order by a 2-1 vote last November. 

The Obama administration says the lower-court ruling denies protection to parents “who have lived in this country for years, would pass a background check, are not priorities for removal, and have a son or daughter who is a U.S. citizen or a lawful permanent resident.”

Dangerous precedents

If the justices agree with the lower courts or are tied 4-4, the case would be returned to the district court for final action. A ruling in favor of the administration, on the other hand, would give a green light for the program to begin.

Immigration rights groups and their supporters smell victory, based on past opinions by Roberts and Kennedy.

Roberts dissented from the court’s 2007 decision in an environmental case because, he said, Massachusetts could not prove it was injured by the federal government’s refusal to regulate greenhouse gases. “The constitutional role of the courts … is to decide concrete cases — not to serve as a convenient forum for policy debates,” he said.

Kennedy wrote the high court’s 2012 decision striking down three out of four challenged provisions of an Arizona law targeting undocumented immigrants. “The states are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance,” he said.

Perhaps most important, immigration proponents note that Roberts has sought to steer the court away from political controversies and may be even more inclined to do so during the battle between Obama and Senate Republicans over filling Scalia’s seat.

“He cares very much about the politicization of the courts,” says Brianne Gorod, chief counsel for the liberal Constitutional Accountability Center.

Opponents warn that if the program is upheld, it could set a dangerous precedent by allowing the president to circumvent laws.

“The question in any future case, as in this one, is not whether the president’s rule makes good policy,” Texas Gov. Greg Abbott and five other governors argue in a brief supporting the states. “The question is whether the Constitution allows the president to license statutory violations. It does not.” 

‘Creative litigation’

If the court doesn’t rule for Obama, it likely will emerge tied or seek to rehear the case when it’s back to full strength — something that could take a year or more. A tie vote would leave the injunction against the program in place, possibly emboldening states to mount more court challenges to federal actions.

U.S. Solicitor General Donald Verrilli argues in the government’s brief that such a result would enmesh the courts “in all manner of disputes between the federal government and a state, or competing factions of states, over immigration policy.”

States and cities that favor the deferred action program could try to mount their own lawsuits, arguing they were deprived of a program that would help local economies and residents. California, Washington state, New York City and others made those claims in briefs supporting the Obama administration.

“The deferred action programs will contribute over $800 million in additional economic benefits to state and local governments annually,” a brief submitted by New York City and other local governments says. The city itself estimates it loses $100,000 a day in tax revenue while undocumented workers remain in the shadows.

“The injunction entered below is preventing our states and millions of our residents from receiving the substantial economic, social welfare, and public safety benefits that will flow from the president’s 2014 immigration guidance,” Washington and 15 other states argue in their Supreme Court brief.

Those municipalities or individuals who stand to benefit from the program could go to court. “Probably a lot of creative litigation would be considered,” says Marielena Hincapié, executive director of the National Immigration Law Center.

Stephen Legomsky, professor emeritus at Washington University School of Law and an immigration expert, says courts might be precluded from considering such challenges, based only on the potential impact of a program.

“Other states and localities who favor this program would be right to feel that they have been treated unjustly,” Legomsky says, but “they would face a tough legal hurdle.”