June 28, 2016

SCOTUS Blocks Obama Executive Amnesty


  • Last week the Supreme Court blocked President Obama’s executive amnesty plan.
  • With the court split 4-4, a lower court’s preliminary injunction against the program will remain in place while the case returns to the district court for a final determination.
  • In practical terms, this means the next president will decide whether to continue litigating or end the misguided program.

Last week, the Supreme Court split 4-4 in deciding United States v. Texas, a challenge to the president’s executive amnesty program. This means the court was unable to reach a decision either way on executive amnesty.

At issue in the case was the correctness of a preliminary injunction put in place by the district court and upheld by the 5th Circuit. Because the Supreme Court split, the lower court’s preliminary injunction was affirmed by default. In practical terms, this means the president will not be able to implement his executive amnesty program before the end of his term.

History of Obama’s executive amnesty

Obama executive amnesty court timeline

However, the case is not done. A preliminary injunction precedes a final decision on the substance of a case. The case will now return to the district court for litigation on the merits. The result in the district and circuit courts is likely to be a permanent injunction of the executive amnesty program. As the preliminary injunction standard requires the court to determine the plaintiff’s likelihood of success on the merits, it typically shows how the court will rule in the final decision.

Litigation in the district court and the likely appeal will almost certainly take longer than the time remaining in President Obama’s term, so the future of the program is in the hands of the next president.

The next president could continue to support executive amnesty and seek reconsideration before the Supreme Court when it has nine justices. Because there was not a majority for either side, the decision last week does not set a binding precedent, so the Supreme Court would be looking at the program anew.

Alternatively, because President Obama chose to implement the program through executive action rather than working with Congress, the next president could rescind the program on day one.

Issue Tag: Judiciary