The Supreme Court’s 4-4 decision in the executive amnesty case means that the lower court’s ruling invalidating that amnesty is affirmed. Executive amnesty will not be granted while Obama is president.
What happens after that? If Donald Trump is elected, presumably there will be no mass amnesty. Trump is unpredictable, but probably not unpredictable enough to do amnesty.
In the more likely event that Hillary Clinton is elected, matters will be very different. As Ilya Somin suggests, she would likely be able to bring the executive amnesty issue before a Supreme Court populated by five liberal judges. Such a Court would almost certainly uphold the amnesty Obama tried to effectuate or one very much like it.
But there’s a different way — smarter and faith to the Constitution (if that matters to Clinton) — in which she could proceed. She could try for a much broader amnesty along the lines of the Rubio-Schumer legislation.
If Hillary is elected president, the Senate very likely will have a Democratic majority. It will then be quite possible to pass sweeping amnesty legislation. After all, such legislation passed a Republican controlled Senate a few years ago.
Perhaps there will be more Republican resistance next time. However, I imagine that the Dems could find the eight or so Republican votes necessary to reach 60. It’s also possible that a Democrat controlled Senate would do away with the filibuster.
The House blocked the Rubio-Schumer amnesty, but that was under the leadership of Speaker Boehner. Speaker Ryan strongly favors amnesty. So even if the Republicans hold the House, that body probably won’t be a barrier to a future amnesty.
In order to become Speaker, Ryan agreed not to bring amnesty up for a vote. However, the promise, as I understand it, was for a limited period. I doubt that it would bind Ryan during a Clinton presidency.
In sum, it is highly likely that a President Hillary Clinton would be able to sign immigration reform legislation offering amnesty to the vast majority of illegal immigrants presently in the country — not just the 40 to 50 percent thought to be encompassed by Obama’s amnesty. And remember, Obama’s excuse for his executive amnesty was that Congress wouldn’t act. That excuse probably won’t be available in a Clinton presidency.
Even so, Clinton will be tempted to do both amnesties — an immediate executive amnesty for millions and a general legislatively-enacted amnesty for millions more that kicks in over an extended period of time (as Rubio-Schumer provided for). Clinton, I imagine, will want to proceed this way. The Latino portion of her base will demand it. For all we know, Clinton may already have promised it.
This is where, one hopes, Paul Ryan would put his foot down. One hopes he would make it clear to Clinton that he will not allow a big immigration reform bill to come to a vote in the House if Clinton flouts Article I with an executive amnesty.
Would Ryan take such a stance? I have my doubts.
The House will select a Speaker next January. If the Republicans hold the House, there is very little chance the Speaker will be anyone other than Paul Ryan. Still, one hopes that a large number of Republican members will demand some assurances from Ryan about amnesty before electing him.
Will they do so? I have my doubts.