Categories: The Cable

One Decision Scalia’s Absence Likely Won’t Change? Immigration.

Efforts to restrict abortion rights, access to contraception, and affirmative action are just three of a handful of high-profile domestic cases the Supreme Court is expected to decide this year — cases that could have dramatically different outcomes following the unexpected death of Justice Antonin Scalia.

But the most high-profile case with evident foreign policy implications is a challenge to President Barack Obama’s 2014 executive action on immigration, which would not only save millions of undocumented immigrants from deportation, but allow them to stay and work in the United States legally.

The Supreme Court announced in January that it would hear the case, which is being led by Attorney General Ken Paxton of Texas. His was one of 26 states to file a lawsuit accusing the president of overstepping his authority and failing to follow federal procedures.

The executive action, called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), would apply to parents of legal and lawful U.S. citizens or permanent residents. It has not yet been implemented, and the Obama administration is eager to get it rolling before a new president is elected in November. The case will likely be heard in April and decided by June.

But it looks increasingly likely that the DAPA case — and others the Obama administration wants to clear up before November  — could be heard on an evenly divided Supreme Court bench.

Scalia was appointed by President Ronald Reagan in 1986, and his death leaves the Supreme Court with four liberal and four conservative justices. It also offers Obama the opportunity to appoint a new justice and tip the court’s majority to liberals. But the Republican-controlled Senate is expected to block the nomination, which could leave the Supreme Court short one justice at least until a new president takes office in January 2017.

Hiroshi Motomura, a law professor at the University of California at Los Angeles, said he doesn’t expect Scalia’s death to have a significant impact on the outcome of the immigration case. Because Texas already won an injunction to freeze the program in lower courts, it will rely on conservative justices to ensure those earlier decisions prevail in the Supreme Court. A tie will automatically maintain the earlier freeze on implementing the program.

Motomura said he believes Scalia would not have voted to reverse the earlier decision, and that in general, “Scalia’s absence matters if and when he would have been a vote to reverse.”

“This means that reversal (thus, allowing DAPA to go into effect) would require five other votes, and his absence won’t change that fact,” he wrote to FP in an e-mail Sunday.

On Saturday, Senate Majority Leader Mitch McConnell insisted it would be out of line for Obama to nominate a new justice so close to the end of his presidency. “The American people‎ should have a voice in the selection of their next Supreme Court justice,” he said in a statement. “Therefore, this vacancy should not be filled until we have a new president.”

Sen. Elizabeth Warren (D-Mass.) called McConnell out for political posturing and insisted his interpretation of the constitution was misguided. “Sen. McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice,” she wrote in a Facebook post. “In fact, they did — when President Obama won the 2012 election by 5 million votes.”

Viet Dinh, a Georgetown law professor and former U.S. assistant attorney general, told Foreign Policy in a phone call Sunday that although that pickle could be “inelegant,” it’s “what healthy checks and balances call for.”

“I think it’s perfectly legitimate for the president to nominate and perfectly legitimate for the Senate to take its time confirming,” he said. “All I can say is that it takes a very, very brave nominee to agree to be a political pinata for the next few months.”

Image Credit: Chip Somodevilla/Getty Images

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