New York Times: “Scalia’s Absence Is Likely to Alter Court’s Major Decisions This Term”

by Joseph McKeown

Justice Antonin Scalia’s recent death will likely complicate the work of the Supreme Court’s eight remaining justices for the rest of the court’s term as well as possibly change the outcomes of major cases facing the court including the closely-watched and highly-anticipated United States v. Texas. This case stems from Texas and other state’s challenge to President Obama’s plan to defer the deportations of more than four million unauthorized immigrants by expanding Deferred Action for Childhood Arrivals (DACA) with a larger program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which would grant “lawful presence” to certain undocumented immigrants who have relatives lawfully in the US.  

Since the court requires at least five votes to accomplish most things, if a case is deadlocked at 4-to-4, the court can automatically affirm the decision under review without giving reasons and without setting a Supreme Court precedent—which in the case of United States v. Texas would uphold the lower court injunction against DAPA—or, more likely some say, the court can set the case down for re-argument in the fall term starting in October in the hope that the case will be decided by a full court. A full court, however, by the fall term is very unlikely since the Republican-controlled Senate Judiciary Committee has stated that they will oppose any Obama nominee, nor hold any committee meeting on a nominee. “It has been an extraordinarily long time since the Supreme Court has been forced to deal with a departure that occurs in the middle of the term, as the court does here with Justice Scalia’s death,” Justin Driver, a law professor at the University of Chicago, told the New York Times

While it cannot be said for sure how Scalia would have ruled in United States v. Texas, his angry dissent in the case over Arizona's harsh immigration law in Arizona v. United States may be an indication. In that dissent, Scalia directly criticized Obama's immigration policy of deferring deportation for potential DREAM Act beneficiaries and described Arizonans as being "under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy." 

The Center for Immigration Studies, an organization that argues for low-immigration numbers, points out that the Obama administration’s insistence that the Supreme Court hear the case as quickly as possible before the merits have been fully argued in the lower courts may backfire, since a Republican-controlled Senate may be even more unlikely to confirm an Obama appointee this year given the important precedent-setting nature of United States v. Texas. Randal Meyer, a legal associate at the Cato Institute’s Center for Constitutional Studies, believes there is a possibility that even with Scalia gone the Court may vote in favor of Texas since there is “some chance that at least some of the liberal justices will ‘switch sides’ to reign in presidential lawlessness, as executive authority can be wielded by both parties.”

The New York Times points out, however, that it’s possible that Chief Justice Roberts, Justice Kennedy, or both may join the liberals on the bench in rejecting the lawsuit’s challenge, perhaps on the ground that “Texas lacks the direct and concrete injury that gives it standing to sue.” Shikha Dalmia, a senior policy analyst at Reason Foundation, unconventionally argues that Scalia may have been an unexpected immigration ally to court progressives in this case. Despite his heated dissent in Arizona v. United States, she writes, Scalia “had strong (though somewhat inconsistent) civil libertarian tendencies that more than occasionally came to the defense of immigrants. Also, his judicial commitment to apply the text of the Constitution and law as written may well have prompted him to uphold these programs.”

Benjamin N. Cardozo School of Law's Andrea Saenz explains further: "Scalia voted with his liberal colleagues for the noncitizen over the government in nearly every landmark crimmigration case [sentencing of immigrants involved in crimes] in recent history." Saenz argues that Scalia had no “inherent animus against immigrants and could be convinced by good arguments based on proper statutory construction.”

David Leopold, a past president and general counsel of the American Immigration Lawyers Association, told Bloomberg DNA that he believed the court would favor the Obama administration despite Scalia's absence. “I don't think that we're necessarily looking at a 4-4 decision,” he said. “The administration has a very strong case…I do strongly believe that the court is going to reverse the Fifth Circuit[.].” Attorney Beth Werlin agrees:

The fact of the matter is that this case was never about Justice Scalia. The President’s executive actions on immigration are lawful exercises of his discretion, and in adopting these policies, he simply is enforcing existing immigration laws passed by Congress. The Supreme Court precedent on this is clear. The Court has repeatedly held that it is well within the executive’s authority to decide how and when to enforce the law and to exercise prosecutorial discretion. As recently as 2012, in Arizona v. United States, the Supreme affirmed that the federal government has discretion to set immigration enforcement priorities.

The expanded DACA and DAPA programs, she goes on to say, clearly falls within this and consequently she believes there will be a clear majority in favor of the Obama administration.  United States v. Texas is scheduled to be argued in April of this year, and we’ll provide more updates as the case progresses and the Supreme Court issues their decision.