SCOTUS and Immigration: The Politics Behind the Case

The oral arguments before the U.S. Supreme Court on President Obama's executive order on immigration were made Monday, and afterwards most observers agreed it's not clear how the Court will decide the case. It is a culmination of years of divisiveness about the eleven million unauthorized immigrants in America. But however important the case, it puts on hold a genuine solution to the status of these mostly Latino immigrants.

The case stems from Obama's granting "deferred action" to certain types of immigrants -- namely, the so-called Dreamers, those who were brought into the country illegally when they were very young, and those who are parents of legal residents, have been in the United States working and without a criminal record at least since 2010. The first group was granted deferred action in 2012; the second group, in 2014.

The executive action stems from two facts: that Congress has failed to act to deal with the eleven million, and that the president has "prosecutorial discretion" to defer deportation. The last is crucial, because it's a legal argument. The solicitor general, Donald Verrilli, noted that the federal government does not have the resources to deport 11 million people , and indeed has been able to deport only a fraction -- about 400,000 -- in recent years. (Even that number was an historic high.) The president is, as a result, exercising discretion all the time; the executive order provides guidance on who is low priority for deportation as well as some benefits, particularly the right to work legally.

The executive orders caused a firestorm from the anti-immigrant right wing, of course. For years, polls have shown the American public favors these programs and a path to legal status for unauthorized immigrants. Typically, these actions are approved by two-thirds or more of those polled. But the Republican base has been in an uproar about Obama's "usurpation" and the immigrants themselves gaining some legal foothold.

The legal action was brought by the state of Texas and 25 other attorneys general. They sought to end deferred action altogether, and made the argument that it would place an undue burden on the states -- to issue drivers' licenses, for example, to these immigrants. They further argued the executive orders exceeded the president's authority. Lower courts agreed there was injury (the added costs to states), and now the case will be decided by an eight-member Supreme Court that, if it splits 4-4, will uphold the lower courts and place all unauthorized immigrants under a deportation cloud.

The case can only be understood, however, in the context of politics, not law. It is part of a strategy of obstruction against Obama on one of the right's signal issues. That Texas is the lead litigant is unsurprising. The extremist governor, Greg Abbott, has gone so far as to deny birth certificates to children born in Texas whose parents were not lawfully in the country, a challenge to the Fourteenth Amendment to the Constitution.

Texas' claim that the federal order places an unfair burden on the state -- the entire basis of their claimed right to take legal action in federal court -- is disingenuous. Undocumented workers contribute gainfully to the U.S. economy, especially in a fast-growing state like Texas. Illegal immigration has been a net plus for Texas economically , driven mainly by the added workforce and consumer base. The state collects sales taxes from all residents, meaning unauthorized immigrants pay the same rate as other Texans, up to 8.25 percent. So the "burden" of issuing a driver's license is largely a fiction.

More broadly, the executive orders of the president touched a raw nerve in right-wing political culture. Illegal immigration (it is, by the way, not a criminal offense to enter the country without authorization, but a civil infraction called "entry without inspection") stands alongside gay marriage, women's empowerment, and the increasingly diverse United States as cultural sore points to the aging white culture of conservatives. The use of Spanish and the prospect of "illegals" gaining citizenship are the most explosive issues. The economic arguments have long been scuttled by economic research. It's all about preserving a mythical, dominant white culture that many -- about 30 percent of the population -- feel slipping away.

This also explains the bizarre period early in the Obama administration of the right wing, led by Donald Trump , accusing the president of not being born in the United States. The "legitimacy" of the son of a black Kenyan had to be spiked. Still, astonishing numbers of Republicans , and especially Trump supporters, believe Obama was not born in the U.S., and nearly a majority of Republicans believe he is Muslim .

It is this legitimacy issue that shapes the politics of immigration. In the eyes of the right wing, the president himself has little or no legitimacy, and his executive orders on the sensitive matter of elevating the legal status of unauthorized immigrants are also illegitimate. Hence, the legal challenge. Hence the crazy politics of building a wall, deporting all the unauthorized, blocking Muslims, and so on. This is a red meat to the floundering, poorly educated white middle and lower classes, mainly from the old Confederacy, who have once again made illegal immigration one of their top concerns.

So the Supreme Court decision, while consequential, is not being litigated on the sentiments and norms that Texas Republicans and the other petitioners hold dear. And its effect will be relatively short-lived. Immigration reform will be a high priority of the new Democratic president come January. If the 4-4 split comes in June, and the Dreamers and 4-5 million others lose protection, they will await a new Supreme Court justice, a new president, and a new will to resolve the quagmire of legal, political, and moral issues that immigration raises. As we've seen with so many social and cultural issues, time is on our side.

John Tirman is author of Dream Chasers; Immigration and the American Backlash (MIT Press).