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Justice Scalia’s Death And The Future Of The Immigration Executive Actions

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Please note the following column was translated from Spanish to English and is available for reprint as long as the author is given proper credit. This column is available online in English here and Spanish here.

With the death of the conservative Supreme Court Justice Antonin Scalia, and the reality of a high court now equally divided, the question many are asking is how this unexpected turn of events could affect the most complex cases under consideration this current term, including the future of the immigration executive actions that would prevent the deportation of around 5 million undocumented immigrants.

The surprising death of the Supreme Court Justice hadn’t even been digested before the matter of his potential successor was politicized, not only in Congress, but also in the Democratic and Republican presidential contests.

Although President Barack Obama has 11 months left in his term and the right to nominate a judge, the panorama is complicated because the Republican-controlled Senate has warned that no such nomination would proceed.  Obama, obviously, would nominate a moderate or a liberal, altering the delicate balance of the nation’s highest court.

The Republican candidates have also joined the chorus, warning that the next president should be the one to nominate a successor to Scalia because this president is on his way out.

The ultraconservative Senator from Texas, Ted Cruz, a Republican presidential candidate, already warned (no surprise here) that he will block the nomination of whomever Obama selects.

The Supreme Court term concludes in June and the tribunal has before it a series of controversial cases, including U.S. v. Texas, the Department of Justice’s appeal of the injunction on the immigration executive actions sustained by the 5th Circuit Court of Appeals in New Orleans.

The case involves the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expansion of the Deferred Action for Childhood Arrivals (DACA plus) policies.

Those actions, announced in November 2014 by Obama, were first blocked by Federal District Judge Andrew Hanen, and the injunction was sustained by the 5th Circuit—perhaps the most conservative federal appeals court in the nation.

The Supreme Court “granted cert” and decided to hear the case.  Among other things, they will also consider the constitutionality of Obama’s actions.  Activists and immigrants are anxiously awaiting the Supreme Court’s decision, which could unblock these actions.

With Scalia’s death, controversial cases which previously have resulted in 5-4 rulings could now end in 4-4 ties.

In the case of a tie, the latest ruling from the previous court remains in place.  In the case of the immigration executive actions, this means the 5th Circuit’s injunction would remain intact and the executive actions would be frozen indefinitely.

Moreover, the case that remains before Judge Hanen—evaluating the “merits” of DAPA and DACA expansion—would remain alive.  And, if the highest court results in a tie on the U.S. v. Texas case, this would not be a ruling on the legality of the executive actions per se. It would open the door to other interested parties filing their own lawsuits to unfreeze the executive actions, with the possibility of bringing the issue before the high court once again.

Regardless, some immigration lawyers remain optimistic about the case this term.

“The government needs at least five votes to overturn the injunction. That was true before Justice Scalia died and it remains true today. Given that we did not expect Justice Scalia to be part of that majority, the Solicitor General’s challenge remains unchanged: persuade at least five justices that the DAPA program is lawful and that Texas lacked standing to challenge it. We are confident that the law and precedent are on the government’s side and that at least 5 justices will agree,” said Marshall Fitz.

And he added that with a 4-4 tie, although the actions will not be implemented, this is better than an adverse 5-4 ruling by the Supreme Court. “A split decision like that will not, however, have any precedential force. As a practical matter, that means the Court will not have ruled on the legality of the programs. That, in turn, means that DAPA’s legality could still be in question and reach the high court through another lawsuit at some point down the line.”

David Leopold, for his part, admits that a 4-4 tie would result in the 5th Circuit injunction remaining in place, “but I don’t think that’s going to happen.”

“I believe a majority of the eight Justices on the Court will agree that Texas’ challenge to DAPA and DACA expansion should be dismissed for lack of standing or, if the Justices reach the merits of the case, a majority will conclude that the President has acted well within his Constitutional authority and that the executive actions on deportations are solidly legal.  I am confident in the strength of the President’s case before the Supreme Court and the death of Justice Scalia doesn’t change that,” Leopold concluded.

Let the betting begin.

Maribel Hastings is a Senior Advisor at America’s Voice.