Scalia's Absence May Not Affect Immigration Case

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By Laura D. Francis

Feb. 17 — Despite the potential impact on other high-profile U.S. Supreme Court cases, Justice Antonin Scalia's Feb. 13 death may have little to no effect on the upcoming case involving President Barack Obama's immigration programs, practitioners told Bloomberg BNA Feb. 17.

“The general assumption” is that the four justices nominated by Democratic presidents—Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan—“will favor the president's authority” to implement the programs, according to Muzaffar Chishti, director of the Migration Policy Institute's office at the New York University School of Law.

For the administration to win the case, it needed the vote of at least one of the justices appointed by a Republican president. “Justice Scalia by all accounts was not one of those,” Chishti told Bloomberg BNA.

Tie Vote Possible

Stephen Yale-Loehr of Miller Mayer in Ithaca, N.Y., said the case might have split 5-4 in favor of the states if Scalia remained on the court, which would result in a 4-4 tie without him.

A tie vote means there is no Supreme Court precedent, and the lower court's decision stands.

That would be bad news for the Obama administration, as the U.S. Court of Appeals for the Fifth Circuit held in November that the president exceeded his authority by establishing the expanded deferred action for childhood arrivals program and deferred action for parents of Americans and lawful permanent residents program .

The case involves a challenge brought by Texas and 25 other states to those programs , both of which are part of the president's executive action on immigration; Texas v. United States, 86 F.Supp.3d 591, 2015 BL 39832 (S.D. Tex. 2015).

A 4-4 tie vote would have a “silver lining” for the administration: The lack of a precedential decision from the Supreme Court also would mean the Fifth Circuit's decision isn't binding in other parts of the country, Chishti said.

“The case so far is only about an injunction,” and the only thing a 4-4 Supreme Court case would affirm would be the propriety of that injunction, Chishti told Bloomberg BNA. That means the underlying case would go forward in the district court, and “the outcome of that case on the merits could then wind itself back into the Supreme Court,” he said.

‘Administration Has a Very Strong Case.'

But Cleveland attorney David Leopold said he's convinced Scalia's absence won't make a difference. “I don't think that we're necessarily looking at a 4-4 decision,” he said.

“The administration has a very strong case,” and “I do strongly believe that the court is going to reverse the Fifth Circuit,” according to Leopold, a past president and general counsel of the American Immigration Lawyers Association.

The case “was a political case from the get-go,” intended to “put a monkey wrench in the discretionary enforcement decision of a president,” Leopold told Bloomberg BNA.

The politically sensitive nature of the case could, however, cause the Supreme Court to postpone oral argument or rehear arguments after the confirmation of a ninth justice, Chishti said.

“The Supreme Court doesn't want to wade into political waters,” although it is “very difficult to speculate” as to what the justices will do, he said.

‘Kennedy Could Be a Key.'

Justice Anthony Kennedy, often seen as the Supreme Court's “swing vote,” also is expected to assume that role in the immigration case.

Kennedy “has been a swing vote in some immigration cases before,” according to Yale-Loehr, who is also a professor of immigration law practice at Cornell University Law School. “Kennedy could be a key.”

Leopold pointed out that Kennedy, who wrote the majority opinion in Arizona v. United States, 132 S. Ct. 2492, 2012 BL 157302, 115 FEP Cases 353 (2012), “recognized the broad authority the president has in making immigration enforcement decisions, particularly deferred action” .

Yale-Loehr also said Chief Justice John Roberts “came out in favor of the federal government” in the Arizona decision. However, Roberts's view that the federal government and not the states has the power and duty to control immigration doesn't necessarily translate to a finding for the administration in this instance.

On the other hand, Leopold said Roberts is “very adamant about keeping politics out of the courtroom,” and he is “very adamant about standing.” That could mean his vote ultimately influences a decision on the standing issue.

“It still comes down to what Justice Kennedy thinks about it,” Chishti said. “Justice Roberts would be a bonus.”

May Be Decided on Standing Grounds

Leopold said there is a “very good chance” that the case will be dismissed on standing grounds. “The absence of Justice Scalia doesn't change the outcome,” even assuming he would have ruled in favor of the states.

Yale-Loehr told Bloomberg BNA that the court's request that the parties submit briefs addressing the take care clause of the U.S. Constitution isn't necessarily an indication that they're planning on ruling on the merits. “Certainly they'd have to get past the standing issue to get to the merits,” he said.

The take care clause issue involves the allegation that the administration isn't enforcing immigration law, and thus is violating the executive's constitutional duty to “take care that the laws be faithfully executed.”

Neither the district court nor the Fifth Circuit have ruled on the issue.

“They wanted it all in front of them, but they could still dismiss it on standing,” Leopold added.

Potential Outcomes

Yale-Loehr said there are three possible outcomes on the standing issue: a majority decision that the states don't have standing; a majority decision that the states do have standing; and a 4-4 tie, leaving the Fifth Circuit's decision—that the states do have standing—in place. The latter two outcomes would require the court to address the merits, he said.

The same three scenarios are possible for a merits decision by the justices, although that outcome is complicated by the various issues at play.

They include: whether the deferred action programs should have gone through notice-and-comment rulemaking as set forth in the Administrative Procedure Act, the basis for the underlying injunction; whether the programs go beyond the scope of the executive's power under the Immigration and Nationality Act; and whether the executive branch violated the take care clause.

Even if the justices rule in favor of the administration on the INA and constitutional issues, a decision that the programs require notice-and-comment rulemaking under the APA is a loss for the president, Yale-Loehr said.

He told Bloomberg BNA that the administration wouldn't have time to go through the process before Obama leaves office in January.

Yale-Loehr said it is possible that the justices could issue a narrow opinion focusing solely on the preliminary injunction, without getting into the merits. A majority decision that notice-and-comment rulemaking wasn't necessary—without addressing the other issues—would mean the programs could be implemented while the merits are debated in the lower courts.

Leopold said that scenario is unlikely. “I think you're looking at a court that wants to resolve this matter.”

To contact the reporter on this story: Laura D. Francis in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at