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High Stakes in Presidential Elections Involve New Supreme Court Justices–APA Leaders

By Jennie L. Ilustre


supreme court

So what exactly happened recently that has a big impact on the November 8 presidential elections? Answer: Two Supreme Court decisions on issues that have divided this great nation: Immigration and Abortion.

Leaders from both political parties and Asian Pacific American (APA) leaders predict the decisions would energize voter turn-out on Election Day. Reason: The next president will appoint the 9th justice of the Supreme Court–probably four, due to retirement by aging current justices–and the highest court’s decisions would affect everyone for years, and perhaps even a generation.

On June 23, the Supreme Court failed to reach majority decision on immigration. A vacancy in the nine-member court, resulting from the demise of conservative Justice Antonin Scalia in February, led to the 4-4 decision. A tie decision automatically lets a lower court’s ruling stand, although it would not be establishing a legal precedent for future lawsuits. The decision affected about 5 million undocumented, including over 400,000 Asian migrants.

The 4-4 Supreme Court decision ended President Obama’s executive action, issued in November last year, granting work permit, driver’s license and deportation relief to undocumented parents of American citizens and green card holders (Deferred Action for Parents of Americans and Lawful Permanent Residents program, or DAPA).

The decision also ended Obama’s second DACA executive action, which would grant the same benefits to undocumented adults brought to the U.S. when they were children or minors (Deferred Action for Childhood Arrivals, or DACA). The decision, however, does not affect those who received the benefits under Obama’s first DACA executive action, issued in 2012.

Democratic Party nominee Hillary Clinton, Politico news reported, described the decision as unacceptable, adding it “shows us all just how high the stakes are in this election.” Republican Party presumptive nominee Donald Trump, who vows to deport the nation’s 11 million undocumented if elected, stressed in a statement that the split decision “makes clear what is at stake in November. The election, and the Supreme Court appointments that come with it will decide whether or not we have a border and, hence, a country.”

In another decision announced on June 27, the Supreme Court, by a 5-3 vote, overturned a Texas law requiring clinics which provide abortions to have surgical facilities and doctors to have admitting privileges at a nearby hospital.


Two Views

Commenting on the two decisions, Filipino American civil rights advocate Jon Melegrito said: “The disappointing Supreme Court ruling on DACA and DAPA will only spur immigrant communities to use their electoral power to vote for a U.S. President who will continue President Obama’s immigration relief initiatives. Immigrant rights activists and grassroots organizations are already mobilizing their communities to make sure they make the right choices. The victory on the abortion rights issue will similarly strengthen women’s rights groups to elect public officials who will protect these gains.”

Remarked Mee Moua, president and executive director of Asian Americans Advancing Justice-AAJC on the June 23 decision: “The Supreme Court today failed to act on the opportunity to allow implementation of vital relief programs for nearly 5 million people, including more than 400,000 Asian American immigrants. We are disappointed in their split decision, which further underscores the need to have nine Justices on the Supreme Court.”

The day after the Supreme Court’s decision on reproductive rights, she pointed out: “In prior elections, the general public may not have been very familiar with the role of the U.S. Supreme Court and how its decisions affect their daily lives.”

“The fact that so many prominent cases on issues like immigration and women’s rights have been decided by an incomplete court has certainly highlighted the importance of having nine justices–especially when one of the most anticipated immigration rulings ended in a tie,” she added. “For this to happen during an election year, with candidates weighing in on how they would fill Supreme Court vacancies, makes it likely that the state of the nation’s highest court may influence voter turnout in this year’s elections.”

Ninio J.H. Fetalvo, Asian Pacific American (APA) Press Secretary of the Republican National Committee (RNC), pointed out RNC Chairman Reince Priebus’ statement on June 23: “Today’s ruling is a victory for the rule of law and our democracy. The Supreme Court has stopped an approach President Obama himself acknowledged twenty-two times he did not have the authority to implement, and has reaffirmed that only Congress has the power to make laws. The stakes in November’s election could not be higher with Hillary Clinton promising to continue President Obama’s lawless approach and pack the courts with activist judges.”

On June 27, RNC Chairman Priebus and Co-Chair Sharon Day released the following statement on the Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt: “The next president will likely appoint multiple justices to the Supreme Court that could determine its course for decades to come. We must always fight to protect life and today’s disappointing decision is another reminder of what’s at stake in this election and why we can’t afford to let Hillary Clinton win.”

The lawsuit which reached the Supreme Court was filed by Texas and 25 other states, including Utah. “Utah joined this lawsuit because, regardless of how you feel about the President’s policy, it does not justify implementation in an unconstitutional manner,” opined Utah Attorney General Reyes. “In this case, as in so many others, the President overstepped his authority in making law without Congressional participation. Whether the policy relates to immigration, public school bathrooms, hydraulic fracking, water management or public lands, it is the role of Congress to pass national laws.”

He continued: “While serious deficiencies exist in current immigration policy, solutions should come through Congress, not by executive branch fiat. If Congress is ignored, any extension of benefits or rights is tenuous and subject to being withdrawn as arbitrarily as they were given. The Latino Community and all Americans deserve better.

“The President, regardless of political party, must respect the rule of law and separation of powers,” he concluded in his statement, issued after the Supreme Court’s ruling. “At the same time, Congress has not only the legal authority but also the moral responsibility to take up critical matters such as these no matter how difficult they may be.”


Senate Races

On July 11, when Evan Bayh of Indiana announced that he would run for his old Senate seat, civil rights advocate Melegrito said: “Personally, I’d like to see the Democrats regain control of the Senate and help move Hillary Clinton’s progressive agenda forward, including filling up vacancies in the Supreme Court. I therefore welcome Evan Bayh’s announcement whole-heartedly.”

He added: “Given what’s at stake, with the Supreme Court playing a critical role in deciding on vital issues that will essentially define what America stands for, who gets elected President and what major political party heads the U.S. Senate, take on great importance in the life of this nation and its political direction in the years ahead.”

“Executive actions are temporary,” he stressed. “The long-term solution to our country’s broken immigration problem is comprehensive immigration reform legislation, to ensure bipartisan support for legalizing the status of 11 million undocumented immigrants, including the ‘Dreamers’ who came to this country as children. This is both humane and practical, but also a sound economic policy as endorsed by the business community. With more Americans paying taxes and contributing to American society, this is a win-win for everyone.”

The mainstream media reported that the Senate races would be another factor in determining the composition of the Supreme Court. The President nominates justices to the Supreme Court. The 100-member Senate holds confirmation hearings, affirming or rejecting the nominations.

Political experts note that Senate Republicans need to keep their majority if they want a replacement for the deceased Justice Scalia to be of the same conservative bent. The Democratic Party needs to retake four Senate seats should its candidate Hillary Clinton win–or five Senate seats if Republican presumptive nominee Donald Trump emerges as victor–to insure having liberals or progressives as Supreme Court nominees.

Gregory Cendana, executive director of the Asian Pacific American Labor Alliance (APALA)-AFL-CIO, declared: “The disappointing decision on US v Texas for DAPA and DACA+ will undoubtedly energize our communities heading into the November election. We need to now focus on voter registration and mobilization for candidates who actually care about fighting for families and who will not play obstructionist partisan politics in nominating a new justice.”

Cendana was referring to the position of the Republican-led Senate to block a confirmation hearing on Appeals Court Judge Merrick Garland. President Obama nominated Garland last March. An L.A. Times report on this issue quoted Senate Majority Leader Mitch McConnell (R, Kentucky) as saying that the American people should have a voice in the selection process, and that the vacancy should not be filled until a new president is elected.

JT S. Mallonga, Chairman of the National Federation of Filipino American Associations (NaFFAA), based in the nation’s capital, said: “We are extremely disappointed with the Supreme Court’s decision. It is a setback to the commendable efforts of both the Obama administration, public officials and immigrant rights advocacy groups who have put forward an initiative that affirms American values of inclusion and of uniting families instead of keeping them apart. As a nation of immigrants, we need to be more open-minded and welcoming of those who also want to contribute to this country’s economic and social progress.”


Two Alternatives

In San Francisco, immigrant rights advocates described the Supreme Court ruling on immigration as a temporary setback. Shiu-Ming Cheer with the National Immigration Law Center (NILC) called the decision a “non-decision decision,” during a briefing organized on June 24 in San Francisco by New American Media (NAM) and Ready California.

With only eight justices on the bench, she explained, the ruling sets no legal precedent, adding there were two possible alternatives. One: A request for a re-hearing of the case by the Department of Justice when the ninth justice is appointed. But the appointment would only take place after the November elections, probably in the middle of 2017. Two: Individual states could file “affirmative lawsuits.” These states “could claim financial harm as a result of the ruling and seek to put the programs in place on a state-by-state basis,” she said.