- The Washington Times - Monday, October 3, 2016

The Supreme Court kicked off its new year Monday by rejecting President Obama’s attempt to revive his deportation amnesty, leaving stand a June ruling that left a nationwide injunction in place and leaves the big immigration questions up to voters in November.

Without comment, the justices refused Mr. Obama’s request for a rehearing of the case, on which the justices had deadlocked 4-4.

Immigrant rights groups howled in protest, and said they’ll try to rally voters to punish Donald Trump, the GOP’s presidential nominee, and to back Democrats who they hope will ensure a more liberal bench is in place before the issue returns to the high court.

But for now, Mr. Obama’s plans to grant three-year work permits and stays of deportation to as many as 5 million illegal immigrants remain blocked.

“The Obama administration’s unprecedented attempt to rewrite federal immigration law failed yet again today,” said Carrie Severino, chief counsel at the Judicial Crisis Network. “It’s fitting that the Texas immigration case, which typifies this administration’s relentless overreach, met its end in a wordless denial by the Supreme Court.”

The White House said Mr. Obama was “disappointed,” but said it will push ahead with the rest of his immigration plans. Spokesman Josh Earnest said the ruling does not affect the enforcement priorities Mr. Obama decreed for immigration agents, which effectively leaves more than 9 million of the estimated 11 million illegal immigrants out of any danger of being deported.

Mr. Obama had hoped to go further with his 2014 amnesty, calling for a “deferred action” program that would have granted the three-year work permit and an official stay of deportation. The work permit would have helped illegal immigrants get Social Security numbers and driver’s licenses, enabling them to come out of the shadows.

But Texas led 25 other states in suing, arguing that the president was breaking the law. U.S. District Judge Andrew S. Hanen in Texas ruled against Mr. Obama, issuing an injunction just two days before the amnesty was due to begin, and the 5th U.S. Circuit Court of Appeals in New Orleans upheld that injunction.

The court rulings don’t affect a smaller 2012 amnesty Mr. Obama announced for so-called Dreamers, and which remains in effect.

GOP presidential nominee Donald Trump has said he would revoke that 2012 amnesty, pulling tentative legal status from nearly 750,000 young adult illegal immigrants who have qualified. Mr. Trump has also vowed to stiffen enforcement of existing laws and to triple the size of the deportation agency, which could result in sending far more illegal immigrants back home.

Democratic opponent Hillary Clinton, meanwhile, has said she’ll go even further than Mr. Obama, flexing executive powers to try to grant a deportation amnesty to millions more people.

Whoever wins will also name the replacement for Justice Antonin Scalia, tilting the court in a way that would likely affect the outcome of future immigration cases.

“We are 36 days away from the elections, and the stakes keep getting higher for Latino and immigrant families,” said Cesar J. Blanco, interim director at the Latino Victory Fund, who vowed punishment for the GOP. “Both in the courts and in Congress, Republicans have attacked us and succeeded at stalling any and all progress to protect our families, leaving millions in limbo and fearing deportation. On Nov. 8 we must come out in full force and hold Republicans accountable, sending a strong message demanding respect and action.”

Activists insisted Mr. Obama was on solid legal footing with his amnesty. They pointed as precedent to much smaller grants of deferred action by President Reagan and President George H.W. Bush.

But Judge Hanen said Mr. Obama broke procedural law by ordering the changes without going through a notice-and-comment period, and the 5th Circuit ruled against Mr. Obama even more broadly, finding he was breaking immigration law.

Those judges never grappled with the big constitutional questions of whether the president was stealing powers the Constitution intended to be wielded by Congress.

For years Mr. Obama himself insisted he didn’t have the power to grant such a broad amnesty — but reversed his stance after his party suffered massive losses in the 2014 election.

The court’s 4-4 decision earlier this year could have been even worse for the president.

Had Justice Scalia not died before the case was decided, it’s likely the court would have ruled 5-4 against Mr. Obama in June, issuing an opinion that would have amounted to a stern rebuke of his expansive claims of presidential powers, extending well beyond immigration.

Instead, the 4-4 deadlock means there is no high court precedent, and makes it easier for the court to revisit the matter in the future.

For now, illegal immigrants who’d been hoping for relief under the amnesty have tried to carve out a new legal battleground.

One illegal immigrant who was granted the three-year amnesty, then had it revoked, has filed a case in federal court in New York arguing that neither Judge Hanen nor the 5th Circuit had nationwide jurisdiction.

That man, Martin Jonathan Batalla Vidal, has asked a judge to order Homeland Security to renew his three-year amnesty despite the other court rulings, saying he wasn’t part of the Texas lawsuit.

“Mr. Batalla Vidal had no opportunity to contest the revocation of his three-year employment authorization or to vindicate his rights,” his lawyers said in their court filing.

America’s Voice, an immigrant rights group, urged more illegal immigrants to file similar cases to test the bounds of Judge Hanen’s ruling.

The group also said attorneys general sympathetic to the illegal immigrants’ cause should consider filing challenges with judges outside the 5th Circuit.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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