Judge Garland unlikely to impact immigration executive action case

Chief Judge Merrick Garland. Photo: Getty.
Chief Judge Merrick Garland. Photo: Getty.

Merrick Garland used his speech accepting President Obama’s nomination to the Supreme Court to tell an immigration story. Like modern refugees escaping persecution in Syria, the Garland family survived because his grandparents left the land of their birth. Merrick Garland told the American people:

“My family deserves much of the credit for the path that led me here. My grandparents left the pale of settlement at the border of Western Russia and Eastern Europe in the early 1900s, fleeing anti-Semitism and hoping to make a better life for their children in America. They settled in the Midwest, eventually making their way to Chicago. There, my father, who ran the smallest of small businesses from a room in our basement, took me with him as he made the rounds to his customers, always impressing upon me the importance of hard work and fair dealing.”

Garland represents the rise of a refugee family from poverty to the highest level of the Federal courts in just three generations.

Garland is considered a moderate, non-ideological judge, widely respected by both liberals and conservatives. He does not have a substantial record on immigration-related cases. He has decided a number of cases that might have bearing on the challenge to executive action on immigration, however. In most cases he has held that the executive has broad rule making power and that great deference is owed to Federal agencies. This would be good for allowing DAPA to proceed, but would not be so good during a more conservative administration.

In any event, it is very unlikely that Judge Garland would even participate in a decision on the crucial immigration case of United States v. Texas, currently before the Supreme Court. The case will decide the fate of President Obama’s DAPA program. Oral arguments are scheduled for five weeks from now on that executive action case. Garland will not be confirmed by then, if he is ever confirmed at all by the obstructionists in the Senate. If he does not participate in the oral arguments, tradition holds that he will not participate in the decision.


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Patrick Young blogs daily for Long Island Wins. He is the Downstate Advocacy Director of the New York Immigration Coalition and Special Professor of Immigration Law at Hofstra School of Law. He served as the Director of Legal Services and Program at Central American Refugee Center (CARECEN) for three decades before retiring in 2019. Pat is also a student of immigration history and the author of The Immigrants' Civil War.