Protesters rally in front of the Supreme Court in support of President Barack Obama’s immigration policies.

Supreme Court Immigration Ruling Leaves Millions in Limbo, Some Jewish Groups Say

Uncertainty will continue to hound millions of immigrant families after the Supreme Court failed Thursday to reach a decision on the legality of President Barack Obama’s executive orders on immigration, pro-immigrant Jewish groups say.

Texas, along with 25 other states, challenged Obama’s 2014 immigration policy deferring deportation for certain undocumented immigrants, saying it violated the Constitution’s separation of powers allowing only Congress to make laws. The Supreme Court, which has had a vacant seat since Justice Antonin Scalia died early this year, tied with a 4-4 decision.

Immigrants in the U.S. deserve the chance to live and work without fear, said Stosh Cotler, CEO of Jewish social justice group Bend the Arc. While a deadlocked Supreme Court may have failed to provide relief to immigrant families, Bend the Arc will continue to fight against deportations, she said.

“Our immigration system has crumbled to the point of cruelty, forcing millions of people to live in fear of detention, deportation, discrimination, and separation from their loved ones,” Cotler said in a statement. “The only way to fundamentally reform our broken immigration system so it reflects our American values…is to pass comprehensive immigration reform.”

Melanie Nezer, vice president for policy and advocacy at refugee aid group HIAS, told the Forward that Thursday’s ruling not only hurt undocumented immigrants and their families, but refugees and asylum-seekers as well.

“The population that would have benefitted from these programs include asylum-seekers who are struggling with the significant barriers to getting asylum,” Nezer said. “Many of them will now have to face years of uncertainty while they pursue these claims when they could have had a clear way forward.”

Nezer said HIAS has been supportive of the president’s immigration policy.

Not all Jewish groups support the president’s actions, however.

Though Morton Klein, the national president of the Zionist Organization of America and himself a German immigrant, told the Forward his organization has great respect for legal immigration, it is deeply troubling that the president tried to illegally intervene in Congress’s lawmaking power.

“We are grateful for the separation of powers and grateful the court upheld [the lower ruling],” Klein said.

He added that it was very concerning that four of the justices “ruled against what almost every scholar knows is a right reserved for Congress.”

In 2014, Obama ordered Secretary of Homeland Security Jeh Johnson to implement Deferred Action for Parents of Americans, a new immigration policy that would allow undocumented parents of U.S. citizens or residents to avoid deportation and legally work in the U.S. Obama also issued an expansion of an earlier policy that allows undocumented children who entered the country before the age of 16 to avoid deportation.

Though the Supreme Court’s ruling blocks Obama’s latest policy, it leaves the administration’s earlier policy on children in place.

“We’re going to have to decide whether we’re a people who accept the cruelty of ripping children from their parents’ arms — or whether we actually value families, and keep them together for the sake of all of our communities,” Obama said Thursday following the ruling.

The White House’s latest policy on deportation came after the bipartisan Senate “Gang of Eight” working group failed to produce comprehensive immigration reform in 2013. Though members of both parties backed the legislation, Republican Senate leadership refused to bring the bill to a vote. Several Jewish organizations, including HIAS, Bend the Arc, and the Anti-Defamation League, supported the senators’ bill, which aimed to provide a pathway to citizenship for nearly 11 million immigrants.

The Gang of Eight included Jewish Sens. Chuck Schumer, D-N.Y., as well as Michael Bennet, D-Colo., who called the ruling “disappointing.”

“Congress should cancel its scheduled extended seven-week recess and get to work on these important issues,” Bennet said in a statement.

Republicans have called the president’s immigration policy illegal, and the Republican Speaker of the House Paul Ryan issued a statement Thursday celebrating the high court’s decision.

“The Supreme Court’s ruling makes the president’s executive action on immigration null and void,” Ryan said. “The Constitution is clear: the president is not permitted to write laws — only Congress is.”

The sole Jewish Republican congressman Rep. Lee Zeldin also said though he fully supports legal immigration, he cannot support amnesty for undocumented immigrants.

“The president’s executive amnesty was clearly illegal,” Zeldin told the Forward in a statement. “The president himself said 22 times before signing the order that he didn’t have the power to take that action.”

Though the Supreme Court’s ruling is most likely the final word on Obama’s immigration policy, it does not prevent another president from implementing a similar policy.

If a vote ties in the Supreme Court, the opinion of the lower appeals court is upheld. However, the opinion does not become precedent, meaning that it only applies to states under the jurisdiction of that specific appeals court — not the entire country. This also means that the case, which returns to the Texas district court for review — or a similar one from a different appeals court — can come before the Supreme Court again. If it does, it will almost certainly be heard by a full bench.

In March, Obama nominated Merrick Garland, the Jewish chief judge on the D.C. Circuit Court of Appeals, to fill Scalia’s seat on the Supreme Court bench. However, the Republican-controlled Senate refuses to hold a confirmation hearing for Garland — or even meet with the nominee — arguing that the winner of November’s presidential election should fill the court’s vacancy.

Presumptive Democratic nominee for president Hillary Clinton has said she would expand upon Obama’s immigration policy, while leading Republican candidate Donald Trump’s campaign has been built on an aggressive anti-immigrant platform.

“The Supreme Court’s paralysis on this critical issue exposes the human cost of Republicans’ refusal to fill the current [court] vacancy,” said Jewish Sen. Richard Blumenthal in a statement. “This sheer, unprecedented obstructionism is damaging our nation’s highest court, jeopardizing our democracy, and leaving heartbroken families in its wake.”

While Thursday’s ruling won’t change the GOP’s approach to Garland, a Clinton win in November might lead a lame-duck Senate to confirm him, said Susan Bloch, a constitutional law professor at Georgetown University. Even if the Senate isn’t taken over by the Democrats in 2017, Republicans will likely view Garland as a smarter choice than allowing Clinton to choose a nominee after she is inaugurated, Bloch said.

Although Bloch knows Garland personally, she said she couldn’t say as to how he might vote in such a case.

“This is a significant separation of powers question, and anyone who focuses on that kind of question has to do it from the vantage point of the Constitution and not politics,” Bloch said. “To have any idea of what Garland or another justice will do, you have to look at the record — and Garland hasn’t had [to answer] this question.”

Contact Drew Gerber at gerber@forward.com or on Twitter, @dagerber

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