Last Thursday, the US Supreme Court blocked President Barack Obama’s immigration policy.
Obama was trying to stop his own agents from deporting 4 million to 5 million mostly Mexicans who illegally crossed into the US but meet certain criteria of being settled in and avoiding tangles with the law.
He had ordered a halt to many deportations as a way of beginning to end the impasse over whether to deport or integrate the 11 million undocumented workers in the US.
How does this impact Israel’s immigration dilemma? It is hugely important because Israel’s High Court of Justice often looks to the US for guidance, though the final word on which way US policy goes and which way it might push Israel, probably depends on whether Hilary Clinton or Donald Trump is the next president and who they appoint to fill the US Supreme Court’s decisive open seat.
Since conservative justice Antonin Scalia died in February, the US Supreme Court has had a key empty seat on a court that used to lean mostly 5-4 toward conservative ideology and is now left with a 4-4 split between conservatives and progressives.
If Thursday’s decision was the end of the story, the punchline would be clear: Despite Scalia’s passing, the US would be moving away from permitting more illegal immigrants to stay and moving closer to pushing them to leave.
Not that it is possible to deport millions of immigrants at the same time, but the government’s resources would be put toward deportation instead of integration.
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But Thursday’s decision is anything but final.
The 4-4 tie means that no precedent was set, only that a lower court ruling freezing Obama’s policy stays in place and that the president cannot systematically stop his own officials from carrying out deportations at this time.
Also, the court’s opinion, probably because it was a tie with no definitive result, was incredibly concise. It gave no explanation as to the basis for the different justices’ views and did not even say how the different justices voted (though pundits are relatively certain it was a clean split of the four conservatives versus the four liberals.) That said, it is pretty clear that while Obama is in office until January, deportation will move slowly pending the results of the presidential election.
If Clinton wins, she will probably appoint a liberal justice. The same case or a new parallel one will come back to the US Supreme Court and it will rule 5-4 to uphold halting a wide swath of deportations, which would encourage integration. Or, maybe, she would even pass a new law in Congress achieving the same thing.
If Trump wins, he will probably appoint a conservative justice. The same case or a new parallel one will come back to the US Supreme Court and it will rule 5-4 to permanently push forward with deportations, which would discourage integration. He would probably also try to get more illegal immigrants to leave though some of his specific policy ideas are not considered realistic by experts.
The Israeli situation is far from identical but still has many similarities, with Trump himself recently calling Israeli policy an example.
In most cases, the approximately 43,000 African migrants who illegally crossed into Israel over the last 10 years cannot be deported to their home countries due to persecution or a lack of diplomatic relations with Israel.
The fight, then, is between integrating them versus putting them in a combination of open and closed detention centers, trying to block them from finding jobs and encouraging them to move to Rwanda in exchange for payment.
The Israeli High Court of Justice has struck down three prior policies as unconstitutional for detaining migrants for too long (at one point up to three years.) However, the fourth policy of detaining a few thousand migrants in a combination of open and closed detention for one year, which was passed in February, seems to be sticking.
Put differently, the Israeli High Court told the government that it was being too aggressive in pushing migrants to leave Israel, but is allowing the state to do so at a less aggressive level and is not obligating the state to integrate them.
Boiled down, there is still a debate, as in the US, over whether to try to get illegal immigrants to leave or trying to set up infrastructure for them to stay.
Supporters of African migrants are still attacking the “voluntary” deportations to Rwanda as unconstitutional and, if they win that battle, the Israeli policy could fall apart again.
Therefore, Thursday’s decision temporarily gives some backing to the state to convince the Israeli High Court that its policy is legal because the world’s greatest democracy is still deporting illegal immigrants on a mass scale.
But, if Clinton wins the election, the next US Supreme Court ruling, likely halting deportations and paving the way to integration, could put the Israeli government back on the defensive.
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