Since the death of Justice Antonin Scalia, there have been issues where the court splits evenly. That’s exactly what happened Thursday when the high court tied 4-4 in the case of whether President Obama’s Executive action on immigration was unconstitutional and unlawful.
The 4-4 tie upholds a lower court injunction, which blocked enforcement of the president’s plan. That means a victory for the separation of powers and a sound blow to President Obama’s lawless power-grab.
While the tie vote does not establish any national precedent and applies specifically to this single case out of Texas, it should send a powerful message to this president: impatient presidents don’t get to change the law.
There is no written opinion when there is a 4-4 tie – just a one-sentence per curiam order. So, we did not hear specifically from the Justices themselves on this issue.
But we did hear from President Obama, who sharply criticized the court for failing to issue a decision on the merits of the case.
“The fact the Supreme Court wasn’t able to issue a decision today doesn’t just set the system back even further, it takes us further back from the country we want to be,” the president said.
He’s wrong. What takes us “further back from the country we want to be” is a president who has relied on his infamous “I’ve got a pen and I’ve got a phone” mantra to circumvent the separation of powers spelled out clearly in our Constitution.
At the same time, President Obama used the immigration case to predictably blame Republicans for failing to confirm his nominee to replace Justice Scalia.
First of all, Congress is correct in waiting until after the election to fill Justice Scalia’s seat. We are in the middle of a critical election and it’s important that Americans have a voice in filling the vacancy on the Supreme Court.
And, while the president may not like it, his flawed strategy of overstepping his authority is simply unacceptable.
President Obama attempted to downplay the rebuke he suffered in this immigration case, but the legal background in this case is important to understand.
The Obama Executive action was challenged in federal court by Texas which led 25 other states in challenging the program President Obama announced in November 2014.
We’ve been involved in this case from the beginning, when I testified before Congress on this very issue in 2014, and we’ve filed briefs in both the district court and the Fifth Circuit on behalf of 113 Members of Congress and hundreds of thousands of Americans.
At the Supreme Court, we filed an amicus brief on behalf of more than 337,400 Americans.
The Supreme Court’s order Thursday means that President Obama’s Executive overreach continues to be thwarted in federal court every step of the way. The injunction means the president can’t move forward with his plan seeking to give quasi-legal status and work permits to millions of undocumented immigrants.
The case will move forward on the merits in federal district court in southern Texas. The latest developments in that case have involved the federal judge sanctioning Obama Administration attorneys from the Department of Justice for “intentionally deceptive” and “unethical” actions.
Throughout the course of this case, our message has been simple and direct: The constitutional system is simple. Congress makes the laws. The President enforces the laws. And the courts interpret the laws.
Even now, I still remember the words from the trial court that was absolutely correct in finding that President Obama “is not just rewriting the laws, he is creating them from scratch.”
President Obama is not a king. He needs to stop acting like one.
Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), which focuses on constitutional law. He also serves as a member of President Trump’s legal team. Follow him on Twitter @JaySekulow.