Supreme Court Justice Antonin Scalia’s death isn’t likely to provide much of a reprieve for the Obama administration when the remaining eight justices hear oral arguments Monday over the legality of the Obama administration’s policy to not deport illegal immigrants living in the U.S.
Even without the most conservative justice on the bench, the most likely scenario in the case, called U.S. v. Texas, is that the remaining ones split evenly, legal experts say. That would mean that a lower court ruling halting the administration’s immigration policy, officially called Deferred Action for Parental Accountability, or DAPA, would stand.
“Even before Scalia’s passing, we knew we needed to get to five. So, yes, concerned. But no more so than before,” said Ali Noorani, executive director of the National Immigration Forum.
The case involves 26 mostly Republican-led states that argue that President Obama exceeded his powers in 2014 when he said that he would not act to deport an estimated 4 million people illegally living in the country.
That placed an impermissible financial burden on the states, they argued, since the immigrants would be eligible for benefits such as unemployment and Medicare. Lower courts have agreed with the states, and the policy has been on ice since February 2015.
The case revolves around two legal questions, said Hiroshi Motomura, who teaches immigration law at UCLA: whether DAPA is constitutional and whether the states have legal standing to bring the case. The justices are likely to split evenly on DAPA, but the standing issue is harder to predict, the professor said.
“If states can sue the government any, time they incur a cost as a result of a federal policy that really opens up the court to hearing all sorts of challenges,” Motomura said.
It is something that might worry the conservative justices since it could be used just as easily by liberal states to hobble conservative policies, he said, adding that it is possible some of the liberal justices might side with the states for the same reason.
Ilya Shapiro, senior fellow in constitutional studies for the libertarian Cato Institute, said the administration’s best hope is that one of the conservative justices is persuaded to side with the administration on technical grounds — a big if.
“The only way this isn’t a 4-4 [ruling] is if [Chief Justice John] Roberts is persuaded that the states don’t have standing” to bring the case, Shapiro said.
The justices also will consider the question of whether the administration properly followed the Administrative Procedures Act, which sets up the guidelines for establishing federal rules. The administration’s failure to comply was the basis of the original judicial order halting DAPA by Texas Judge Andrew Hanen in February 2015. The administration has argued the procedures act doesn’t apply in the case.
“The government’s arguments on APA and statutory law are risible, in my view. Moreover, if the law does give the president as much discretion as the government claims, then it’s an unconstitutional delegation of legislative authority to the executive branch,” Shapiro said.
Reason Foundation analyst Shikha Dalmia argued that the administration’s lawyers might, ironically, miss Scalia. His “originalist” beliefs might have caused him to decide the president was within his authority.
“To the extent that the Constitution doesn’t draw any clear lines [on immigration policy], judicial restraint would have prevented Scalia from substituting his judgment for the president’s,” she argued.
