ON ONE level, it’s unsurprising that the Supreme Court deadlocked 4 to 4, after an appeals court split 2 to 1, in considering President Obama’s sweeping executive action to shield millions of undocumented immigrants from deportation. As a legal matter, this was not an easy call.
What makes the outcome so depressing for the country, and such a standard-bearer for failed governance, is that as a policy matter, it shouldn’t be hard at all. Immigrants have been and continue to be, on balance, an overwhelmingly positive force for the nation’s social and economic health. It would be in their interest and the nation’s to regularize the status of workers and families who, as a practical matter, are not going away. There was a time when politicians of both parties understood this and actually came close to legislating a solution. But loss of nerve and an impulse to torpedo compromise in search of maximal political advantage put a solution out of reach, and here we are: Millions of people remain condemned to live in the shadows, and the U.S. economy cannot take advantage of the talents and energies of all the nation’s inhabitants.
A surge in immigration from Mexico around the turn of the century was the precipitating event. As Mexico’s economy improved, the surge slowed and even reversed, but 11 million or so undocumented immigrants (by no means all Mexican, of course) remain. A Senate compromise, supported for a time by Republicans such as John McCain (Ariz.) and Marco Rubio (Fla.), as well as by most Democrats, would have allowed these undocumented people to stay if they learned English, paid taxes and followed the law. Stricter border security and penalties against employers of illegal immigrants would have discouraged future surges. A win all around.
House Republicans, though, refused to consider the compromise. Mr. Obama, after acknowledging limits on his authority to act alone, reconsidered in his frustration and ordered law enforcement to put millions of immigrants beyond the reach of deportation. Was he exercising prosecutorial discretion (common and constitutional) or practicing some combination of law-making and law-evading? Smart people could and did disagree.
The icing on the cake of misgovernance is the refusal of Senate Republicans to take up Mr. Obama’s nomination of highly qualified judge Merrick Garland to the Supreme Court. Their excuse was the upcoming presidential election, but their action essentially decrees that a president can exercise his constitutional authority to name judges for only three-quarters of his constitutional term. The result is an evenly numbered court prone to deadlock.
The standoff heightens the stakes of the presidential election. Democrat Hillary Clinton supports immigration reform. Republican Donald Trump has promised to round up and deport 11 million immigrants in what would be one of the largest forced movements of people in modern times. It’s not clear how he would accomplish this, nor how he would subsequently let the “good” ones come back, as he also has promised to do. What is foreseeable is the human and economic pain that would result from the attempt.