When President Obama announced his major second term executive actions on immigration, it was almost immediately clear that it would lead to a Supreme Court showdown. But now that the case is finally at the high court, the conservative forces pushing it will be without a major ally, with Justice Scalia’s unexpected death in February.
All eyes at Monday’s oral arguments will be on Chief Justice John Roberts to gauge how he will navigate his court through an already hyper-political case that the vacant seat further complicates.
Like many high-profile cases on the Court’s docket this term, the prospect of a 4-4 split looms ahead of U.S. v. Texas, a challenge brought by 26 states objecting to Obama’s 2014 executive action allowing certain undocumented immigrants to apply for a program that would shield them from deportation. A tie vote would be a devastating loss for the administration, and would likely mean the Obama presidency will end before he is able to implement the policy. But, because it would lack national precedent, a 4-4 decision could leave the door open for another legal route for defenders of the program to fight for its enactment.
The death of Scalia has shifted the dynamics of a court, weakening the influence of its conservative bloc and making it next to impossible for the court to issue a sweeping opinion that would have redefined a president’s executive authority.
“The chances of the administration winning have probably gone up with Justice Scalia not on the bench,” Kevin Johnson, a UC Davis law professor who teaches immigration law, told TPM.
The court will be weighing a preliminary injunction placed on a 2014 Department of Homeland Security memo that outlined the creation of “Deferred Action for Parents of Americans” (DAPA) and an expansion of “Deferred Action for Childhood Arrivals” (DACA). It was first blocked in February 2015 by a very conservative district judge in Texas, whose decision was upheld by a panel of the 5th U.S. Circuit Court of Appeal last fall. Now the Supreme Court will be weighing whether the injunction should be allowed to stand while considering whether the Obama administration violated regulatory procedure, legal statute or the Constitution.
A tie vote would defer to the appeals court’s decision. The initial injunction would be allowed to stand, and the case would proceed back up the judicial ladder on the merits, which could take months, or even years.
“I see a 4-4 split as a victory for the states because it is going to run out the clock on the Obama administration,” Johnson said.
However, with a deadlocked vote, defenders of the program will be assessing whether they could bring a lawsuit elsewhere that could return the issue to the Supreme Court when the ninth seat is filled.
“People aren’t going to sit back and let the Fifth Circuit [decision] stand nationwide,” said David Leopold, an immigration lawyer in Cleveland supportive of the government program and former president of the American Immigration Lawyers Association. “I don’t think a 4-4 decision will be the end of the story for DACA and DAPA.”
Leopold speculated that another lawsuit challenging the nationwide injunction could come from another state, such as California, which is supporting the government’s defense of the program in an amicus brief, or from individual elsewhere in the country who is adversely affected by the program being blocked.
But supporters of the administration’s immigration policy are hoping that it doesn’t come to that. They are optimistic that the quirks of the case will offer a Supreme Court an easy out. A major issue defenders of the immigration action intend on pressing Monday is the question of standing, i.e. whether Texas and the other states meet the constitutional requirements to bring a lawsuit against the federal government. Even those who support Texas’ claims acknowledge that some of the conservative justices might be tempted by a decision that throws out the case on standing.
“I think the government’s best shot of winning this is on standing, probably with Roberts if he wants to. If he chooses this as part of his unsuccessful project of depoliticizing the court, then that’s maybe one way to do it,” Ilya Shapiro, a constitutional scholar at the libertarian Cato Institute said, adding that he still thinks a 4-4 split is most likely.
“It’s really clear that Roberts takes a vigorous view of standing,” Leopold said, pointing to his dissent in 2007’s Massachusetts v. EPA — where some states sued the EPA for not enforcing carbon regulations — and opinions in other cases where lack-of-standing played a decisive role.
In U.S. v. Texas, the U.S. government and its supporters argue that granting the states standing will encourage all sorts legal challenges brought by states that disagree with the policy choices made by the federal government.
“You can imagine multiple cases in a year, just in the area of immigration, and you add to that virtually every other area of the law where federal action can affect a state’s budget,” Thomas Saenz, who is arguing in Monday’s hearing on behalf of undocumented immigrants supporting the program, told reporters at a press briefing Thursday.
“It could shut down the government,” he added.