DAPA and DACA under uncertainty in the Supreme Court

Carlos Barria/Reuters
Carlos Barria/Reuters

Many Americans are wondering what the impact of the death of Justice Antonin Scalia will be on immigration cases that come before the Supreme Court. In particular, they are interested in the effect on the case of United States v. Texas, which will decide whether president Obama’s executive action on immigration will go forward.

The Supreme Court normally has nine members. When a justice retires or dies, the court does not shut down. It continues doing its business. The time to replace a member of the court usually takes two to three months, which means that a new member is unlikely to be confirmed before the end of April. Of course, we have the unusual situation of the Senate Majority Leader Mitch McConnell threatening to stall the confirmation process until after a new president replaces President Obama.

If McConnell’s strategy is successful in preventing confirmation this year, then the executive action case will be decided by only eight justices. If five justices agree for or against executive action, then the decision will function the same as any other Supreme Court decision. However, if the court splits in a four to four tie, then the decision of the lower court that blocked executive action will be allowed to stand. The lower court in this case blocked executive action, so a tie vote will prevent executive action from going forward.

The court’s tie vote will not be a precedent, however. Other cases could come before the court on the same issue and be decided differently. Avoiding this sort of chaos is one important reason why the court should be at full strength.

The question arises. How likely is a tie vote? Justice Scalia had one of the worst voting records for immigrant rights of any on the court. He was also an aggressive advocate for his anti-immigrant positions during the court’s deliberations. Without his presence, the more moderately conservative Justice William Kennedy might side with the court’s four liberals in favor of allowing the DACA/DAPA programs to begin.

If the Senate does confirm a new justice appointed by President Obama, then the court would likely swing to a more pro-immigrant position. This may or may not impact on the United States v. Texas case. It all depends on how quickly the Senate moves.

Supreme Court Justices typically only vote on cases if they have participated in the oral arguments. If the confirmation process drags on past April, the new Justice might not be installed before the oral argument and the court might see a four to four tie even if there are nine justices.

Finally, we should recall that if no Justice is confirmed this year, the next president will choose Justice Scalia’s successor. One or more additional justices may leave the bench during that time, giving the new president the opportunity to remake the court. Filling Scalia’s seat, and possibly others that may become vacant in the next eleven months, will become one of the political prizes for the candidates for president. Mitch McConnell’s unprecedented decision to try to obstruct Obama in the performance of his Constitutional duty has the danger of turning the appointment of a new justice into an unmatched political circus.