Justice Antonin Scalia’s recent passing reduces the likelihood that the Supreme Court will issue a definitive ruling on President Obama’s executive amnesty program.
Twenty-six states previously filed a lawsuit against the president’s Deferred Action for Parents of Americans program, which postpones deportation and grants work permits to 4 million illegal aliens who have U.S.-born or naturalized children. These states successfully blocked Obama’s action in lower courts, which ruled that DAPA burdens states and unconstitutionally re-writes immigration law contrary to policies the American people have endorsed through their elected representatives in Congress.
President Obama’s administration appealed the lower courts’ decision to the Supreme Court, and justices reported in January that they would rule on the DAPA case by late June.
Court watchers had assumed Justice Scalia would tip a divided court in opposition to DAPA. In 2012, Justice Scalia penned a scathing and controversial dissent in favor of Arizona’s right to deport illegal aliens, stating President Obama’s refusal to enforce immigration law “boggles the mind.” Justice Anthony Kennedy and Chief Justice John Roberts have historically voted on both sides of immigration cases, so assuming they split on this case, Scalia was expected to cast the decisive fifth vote against DAPA.
With Scalia gone, and Senate Majority Leader Mitch McConnell promising to block any Supreme Court nomination by President Obama, it seems likely that an eight-member bench will deliberate and rule on the case.
That opens up the possibility of a 4-4 split vote. If that happens, the lower courts’ rulings would stand, and DAPA will be struck down.
However, opponents of executive amnesty shouldn’t cheer too soon.
A 4-4 split would fail to set a precedent for similar cases involving immigration laws and executive action. Thus, the next president could issue executive orders that block the enforcement of immigration laws, and a similar battle could once again head to the Supreme Court.
In other words, a 4-4 tied ruling will eliminate DAPA, but not the possibility of future DAPA-like programs.
A yet-unnamed justice nominated by a still-unchosen president could determine America’s immigration enforcement policies. That’s one more reason for voters to choose wisely this November.