On Saturday, February 13th, the United States Supreme Court unexpectedly lost its longest serving Associate Justice. Antonin Scalia was appointed by President Ronald Reagan in 1986, and was known as a staunchly conservative "originalist" when it came to interpreting the Constitution. By all accounts he was brilliant, combative, funny, and relentlessly ideological. There has been a slew of remembrances of his life and analyses of his judicial career, highlighting his accomplishments and reflecting that his forceful personality resulted in strong opinions about him, across the political and legal spectrum. As we tend to do here, though, we will look briefly at the potential effects of Justice Scalia's passing on immigration jurisprudence.
Upon reviewing Justice Scalia's rulings on immigration cases over the past three decades, it seems that he generally favored a restrictive view, and tended to side with the states over the federal government. In the 2012 decision in Arizona v. United States, Justice Scalia dissented from the majority opinion, which struck down most of the state's punitive immigration enforcement legislation. Justice Scalia thought the state should be permitted to step in to regulate immigration law where it felt that the federal government had not. In the Arizona case, Justice Scalia even took the unusual step of reading aloud from his dissent, a practice generally reserved for occasions where the justices feel the most strongly about the legal issues presented in a particular case. In 2001, he dissented from the majority decision in Zadvydas v. I.N.S., finding that the federal government had the right to detain non-citizens indefinitely. Also in 2001, he wrote a dissent in I.N.S. v. St. Cyr, opposing the majority's finding that removable non-citizens retained some right of access/appeal to the federal courts. And so it went with his view on immigration enforcement and the individual rights of the non-citizen.
Turning our attention to the current term, the most significant immigration case of the day is United States v. Texas, where the Supreme Court has agreed to hear the Obama Administration's appeal of a Texas federal court's injunction of the implementation of DAPA (Deferred Action for Parental Accountability). Forecasting Supreme Court outcomes and specifc splits can be a fool's errand, but the math certainly changes now that the court's most vocal conservative mind is no longer part of the equation. The first question is whether the President has any chance of seeing his next nominee put to a vote in the Senate. The political rhetoric is flowing freely - and some might say recklessly - on that particular issue. By many accounts, the current composition of the court is likely to split evenly on the DAPA case, which would result in a non-precedential opinion which would allow the injunction to remain in effect. The original lawsuit filed by Texas and 25 other states whose executive branches oppose the President's proposal to defer the deportation/removal of certain qualifying parents of lawful permanent residents and United States citizens has not even begun to reach any argument on the merits. So, even if the injunction barring implementation of the program is upheld, the case would still result in a trial on the merits of Texas' and the other states' claims, which likely means that it would end up at the Supreme Court yet again.
We do not pretend to know which way the wind is blowing, but we can claim confidently that the judicial landscape has certainly changed in the wake of Justice Scalia's death.
Stay tuned, as the nomination/confirmation process will be the next round of activity which may impact the 5 million or so people who would benefit from DAPA becoming a reality.