The DAPA and Expanded DACA Case Before the Supreme Court May Be Affected by Justice Scalia’s Passing

The DAPA and Expanded DACA Case Before the Supreme Court May Be Affected by Justice Scalia’s Passing

The death of Supreme Court Justice Antonin Scalia has created turmoil in Washington DC and on the Presidential campaign trail.  Republicans are uniformly calling on the President to refrain from nominating anyone to fill the vacancy due to the upcoming Presidential election.  Within hours of the news of the Justice’s death, Senator Mitch McConnell, the Senate Majority Leader and the man who controls the Senate’s agenda, stated that the “vacancy should not be filled until we have a new President.”  The President has stated that he intends to nominate someone to fill the vacancy, setting up a battle with Senate Republicans over whether the nominee will ever get a hearing or approved by the Senate.

Assuming that this logjam persists through June, when the current Supreme Court session ends, it is quite possible that the Court will hear the case of the Texas injunction of DAPA and expanded DACA with eight justices.  An even number of justices, of course, raises the possibility of a tie decision.  A tie decision leaves the status quo in place, meaning that the injunction would stay in place, effectively killing DAPA and expanded DACA for President Obama’s term.  In order to overturn the 5th Circuit’s decision, the Obama administration must secure five votes to reverse.

Presumably, the President would seek to replace Justice Scalia with a justice more inclined to reverse the injunction.  Such a move could have the effect of taking away a vote to uphold the injunction and replacing it with a vote to overturn the injunction.   Justice Scalia probably would have been a vote in favor of upholding the injunction.  Justice Scalia was a dissenter in U.S. v. Arizona, the Supreme Court case that rejected Arizona’s SB 1070, the “show me your papers” law.  To Justice Scalia, states retain the authority to create certain immigration enforcement regimes that are consistent with federal law.  In fact, Justice Scalia felt very strongly about his position and read a statement from the bench as the court announced its opinion.  His statement provides ample reason to believe that he would have been hostile to DAPA and expanded DACA.   Justice Scalia stated:

After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1 .4 million illegal immigrants. The husbanding of scarce enforcement resources can hardly be the justification for this, since those resources will be eaten up by the considerable administrative cost of conducting the non-enforcement program, which will require as many as 1.4 million background checks and biennial rulings on requests for dispensation. The President has said that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the immigration laws. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the President declines to enforce boggles the mind.
If the President is not successful in getting a nominee on the court by the time the court hears this case, the administration finds itself in a substantially similar position it was in before Justice Scalia died, meaning that the administration would need to attract the votes of either Chief Justice John Roberts or Justice Anthony Kennedy.  It is presumed that Justices Thomas and Alito will vote to let the injunction stand.  So, in order to succeed, the administration will need either Roberts or Kennedy, which is exactly the position it was in last week before Justice Scalia died.

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