If immigration wasn't already the most important wedge issue in the 2016 election, the Supreme Court's 4-4 ruling on President Obama's Deferred Action for Parents of
Americans (DAPA) executive order just solidified immigration's status as the nation's most divisive issue. The one-sentence "decision" will turn this election into a fierce war of identity politics with Hillary Clinton's Latino base pitched against Donald Trump's white male supporters. Even though Clinton's policies will lead to more open immigration policies, which is a good thing, her modus operandi of rallying an ethnic constituency will be damaging for the country.
President Obama claimed that the ruling—which said only that the justices had failed to reach a decision and therefore the lower court's ruling blocking his action was "affirmed"—was not a "value judgment." That may be true. Nevertheless, it was still a body blow to DAPA, a core element of his legacy. As the name suggests, the order would have deferred deportations—not offered permanent legal status, mind you—to some four million primarily Latino undocumented foreigners who have American children and families but no criminal record. They would have also obtained work permits that would have allowed them to come out of the shadows and work without fear of deportation.
Although the ruling didn't say which justice had come out on which side, it is safe to assume that the justices split along ideological lines. Oral arguments showed that all the liberal justices were convinced that the president had the statutory and constitutional authority for the order. So the only two potential swing votes were Chief Justice John Roberts and Justice Anthony Kennedy. Ironically, both of them voted in favor of the administration in King v. Burwell, which challenged the legality of Obamacare handing federal subsidies to states that had refused to establish insurance exchanges. But the two justices went against Obama on this one.
Justices' judicial philosophy may be shaped by their deeper ideology, but no doubt, all the justices acted in accordance with their best legal judgment in this case. That, however, is not how DAPA supporters and opponents are likely to see it given the cynical partisan games their elected leaders have been playing on immigration reform, starting with the president himself.
Immigration has been a festering wound in this country for decades, and certainly long before President George W. Bush's comprehensive reform effort crashed and burned in 2006. Given the fate of that bill, President Obama should have seized the first auspicious moment to get immigration reform done, given that virtually everyone agrees that America's immigration system is badly broken. This should have been soon after he got elected in 2008. At that time, he enjoyed considerable goodwill with the American public, Democrats controlled both house of Congress, and there was lingering buy-in from Republicans who had supported the Bush effort.
But Obama blew it. He used all his political capital to foist ObamaCare on a deeply skeptical country (in the middle of an economic meltdown) and a unanimously opposed Republican Party. Nor did his political gamesmanship stop in the second term: Many advised him that if he was contemplating executive action, he should do it immediately after the collapse of the Gang of Eight bill in 2013. But that would have taken the issue off the table before the midterm elections, and he preferred to use it as a hammer to beat up Republicans. That strategy, however, backfired big time, because Latino voters, disgusted by the lack of action, stayed home and Republicans not only made gains in the House, but also took control of the Senate.
This meant that the president either had to give up on action altogether, which would have incensed his base, or proffer it with a weakened hand and without enough time to abide by all the procedural niceties such as an adequate notice and comment period as required under the Administrative Procedures Act. This was the core of the legal challenge against DAPA and what ultimately doomed it.
Republicans, of course, have played their own games. The Senate passed the bipartisan Gang of Eight bill 68-32, which included 14 Republicans, with a path to permanent legal status for undocumented immigrants. However, the Rush Limbaugh anti-amnesty caucus in the House refused to allow then-Speaker John Boehner to even schedule an up-or-down vote—precisely because the bill would have likely passed. In other words, the same minority that torpedoed President Bush's bill torpedoed this one as well.
A Supreme Court ruling where one of the justices crossed the aisle was the last hope to break the logjam after Justice Antonin Scalia's death. Since that didn't happen, the issue will now be settled by the next president. Hillary Clinton has pledged not just to keep but expand DAPA. But Donald Trump, whose plans to round up 11 million illegal immigrants and eject them in an Operation Wetback-style gambit have made him wildly popular with the white working class, obviously has no use for it. If Clinton gets elected, the issue will almost certainly reach the Supreme Court once again. Securing the right to appoint Justice Scalia's replacement just assumed even more importance—to both sides.
Both candidates will use the issue to mobilize their base—Hillary Clinton will target Latinos, because they are most affected by DAPA, and Donald Trump the white working class, because they are the most incensed about it. This election will degenerate into a full-blown game of identity politics—or what in pre-modern parlance used to be called tribal warfare. This is precisely what America with its fancy Constitution and grant of individual—not group—rights was supposed to avoid.
Neither side will give a whit about the rule of law enforced by neutral judges. This is a profoundly unfortunate outcome for American democracy and both parties are to blame for it.
A pox on both their houses.
A version of this article originlly appeared in The Week.