Equally divided Supreme Court affirms lower court decision on Obama immigration policies (updated)

|The Volokh Conspiracy |

Today, the Supreme Court announced that it was affirming the decision of the U.S. Court of Appeals for the Fifth Circuit in the immigration case, United States v. Texas. What this means, as a practical matter, is that the challenge to the Obama administration's deferred-action immigration reforms is successful, as a 4-4 split leaves the lower court opinion undisturbed. At the same time, this tells us little about whether a subsequent challenge to a new policy—say, a revised set of reforms adopted by a Clinton administration—would be successful, as a 4-4 affirmance is non-precedential.

Going forward, it seems the administration has two options. One is to seek rehearing, in the hope that there will be a ninth justice next term. A second would be to seek review of the final judgment below. (This case concerned the appeal of a preliminary injunction.) In either case, however, whether to continue legal defenses of the Obama policies will ultimately be up to the next administration, which will take office before the end of the next Supreme Court term. This also means a Clinton administration could adopt slightly revised policies (addressing the procedural complaints) to strengthen the substantive defense.

[Disclosure: I joined an amicus brief in Texas arguing that states did have standing to challenge the law, which I discussed here. I have also blogged previously that I was skeptical of the substantive legal arguments against the administration's policies.]

U.S. v. Texas was not the only 4-4 affirmance today. The court also split 4-4 in Dollar General Corp. v. Mississippi Band of Choctaw Indians, which concerned the jurisdiction of Indian tribal courts over civil tort claims against nonmembers.

UPDATE: I have additional thoughts on the Court's decision at SCOTUSBlog.

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