The Supreme Court’s real message

June 23, 2016 David A. Martin
Rena Schild /

The Supreme Court’s 4-4 split on President Obama’s deferred action programs puts the broader issue of how to resolve the fate of about 10 million long-term unauthorized immigrants squarely back into the political arena. As dismaying as our current political dialogue is, this is right where the issue should be. But we need the right kind of political focus.

At first glance, the Court’s nine-word ruling seems like a great anticlimax. We get no definitive, precedential word from the Justices on the validity of such a broadly categorical exercise of enforcement forbearance, one that would cover perhaps four million unauthorized immigrants, giving them work authorization as well. But we do know that the lower court’s preliminary injunction will fully block Obama’s program, known as DAPA, covering unauthorized immigrant parents of children who are U.S. citizens or permanent residents, until well past the election.

For proponents of some form of legal status for the long-resident undocumented, the political battle could be pursued in two different ways. It could focus on electing a president likely to appoint a ninth Supreme Court Justice who would uphold DAPA. Important as that outcome surely would be for the individuals given deferred action, deferred action remains a temporary and inferior status, still vulnerable to withdrawal by a later administration. And it does nothing to fix other parts of our immigration system, either to revise our legal immigration categories or especially to establish a future system that embodies—and renders legitimate—thoughtful, resolute enforcement against newer violators.  

Proponents of legalizing the long-resident unauthorized population could focus, far more productively, on using the election season to make the case for more comprehensive solutions, and thus to elect a president and a Congress that will act through legislation early in the next Congress. 

Proponents actually have a lot to work with. The Court’s decision coincided, almost to the minute, with the release of a new Brookings survey, based on polling done a few weeks ago. It showed (consistently with much earlier polling) that 61 percent of Americans support providing a way for long-term unauthorized migrants to become citizens. An additional 17 percent support permanent legal status for them, though not a path to full citizenship—in sum, a lopsided 78 percent favoring some form of durable legal status. Only 21 percent favored identifying and deporting them. Even among Republicans, 49 percent supported a way to become citizens, with 22 percent more favoring permanent legal status. The support was lower among self-identified Trump supporters, but even there 58 percent (45 and 13) supported granting some form of legal status.

How could a workable, comprehensive, and durable legislative reform come about? Almost surely not through a Donald Trump victory. Despite the polling data on his supporters’ views and the erratic fluidity of his policy positions, he is too dug-in on deportation and wall-building. Hillary Clinton, in contrast, supports early action on comprehensive reform legislation. If an anti-Trump backlash hands both the Senate and the House to the Democrats, we could expect early passage. Even the filibuster rule should not impede this outcome; the Senate, whose electorates are not subject to gerrymander, voted 68-32 for comprehensive reform in 2013.

But even if the Republicans maintain a slim majority in the House (still the more likely electoral outcome), a Trump loss, especially a lopsided one, should finally convince enough Republican Congress members that it really is time to put these divisive immigration issues behind us. Indeed, a slightly Republican House might well help produce a better and more balanced legislative package, combining legalization of the long-resident population with real seriousness about effective future enforcement, a combination I outlined in my essay, Go Comprehensive, Go Bold, for the First Year Project.  

It remains deeply important to enact the right kind of comprehensive legislation, as a foundation for building long-term stability in this emotional and volatile policy arena. Let us take seriously the Court’s implicit invitation to make the public case for a sound legislative solution, rather than relying on executive unilateralism.

David A. Martin is the Warner-Booker Distinguished Professor of International Law at the University of Virginia. He has published numerous books, scholarly articles, and op-ed essays on immigration, refugees, constitutional law, and international law, including a leading casebook on immigration and citizenship law, now in its eighth edition. As Principal Deputy General Counsel of the Department of Homeland Security from January 2009 to December 2010, and in earlier government service at the Department of State and the Department of Justice, he was closely involved in critical legal and policy developments in the immigration field.