U.S. v. Texas - The future of President Obama's
Immigration Executive Orders after Justice
Scalia's Passing

United States Supreme Court Justice Antonin Gregory Scalia passed away on February 13, 2016. Responsible for the rebirth of originalism, Justice Scalia was highly intellectual, fiercely conservative, and sometimes combative in the language of his dissenting opinions. His passing leaves a large void on the "conservative side" of the Court that will undoubtedly affect many pending cases, including this term's most significant immigration case, United States v. Texas.

Perhaps more than any other field of law, immigration is profoundly affected by the political mood. As with enforcement priorities, the standards for prosecutorial discretion that allow a foreign national to temporarily stop removal proceedings while other relief is pending can swiftly change from more generous to very stringent. The passing of the Court's pillar of conservativism, who was reliably pro-States' rights, may completely change the outcome of this important immigration case.

In United States v. Texas, No. 15-674, __ U.S. __ (2016), the Court granted review of the Fifth Circuit Court of Appeals' decision to uphold a nationwide injunction against the implementation of President Obama's two major immigration initiatives: Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA") and an expansion of Deferred Action for Childhood Arrivals ("DACA").

DAPA would defer immigration enforcement against certain undocumented immigrants who have lived in the United States since January 1, 2010 and have children who are American citizens or lawful permanent residents.

DACA originally focused on the children who (1) entered the United States prior to their sixteenth birthday, (2) have resided continuously in the U.S. since June 15, 2007, and (3) were under the age of 31 as of June 15, 2012. The expanded DACA program removed the age limit and requires continuous residence in the U.S. since January 1, 2010. The DACA program announced by the President on June 15, 2012 remains in effect; the expanded DACA, however, has been enjoined.

"The Court's added question in its order granting certiorari is seen by many as an indication that this decision could redefine the balance of power between Congress and the President."

The Obama administration's petition for a writ of certiorari presented three questions: (1) whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedures Act ("APA") to challenge the Secretary of Homeland Security's guidance seeking to establish a process for considering deferred action for certain aliens because that process will lead to more aliens having deferred action; (2) whether the guidance that was provided is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA's notice-and-comment procedures. The Supreme Court's order granting certiorari—issued, of course, before Justice Scalia's death—contained an additional question: whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3 which requires that the President "shall take Care that the Laws be faithfully executed." The Court's added question is seen by many as an indication that this decision could redefine the balance of power between Congress and the President.

In his dissent in Arizona v. United States—the case which struck down most of the key provisions of Arizona's Senate Bill 1070, which requires police to determine the immigration status of someone arrested or detained when there is "reasonable suspicion" that he is not in the U.S. legally—Justice Scalia implied that he disagreed with President Obama's then-new DACA program. As the New York Times reported, "Justice Scalia also took the unusual step of raising an issue that had not been part of the case, assailing President Obama's executive program granting protection from deportation to young undocumented immigrants, citing it as evidence of the administration's abdication."

Before Justice Scalia's passing it was perhaps assumed that the Court would affirm the Fifth Circuit in a 5-4 decision—preventing the implementation of DAPA and DACA—and that the Court would possibly issue a decision that defines the President's power to use Executive Orders beyond the immigration issue at hand. With Justice Scalia's absence and the prospect of the delay of the appointment of his successor until after the new President takes office in January 2017, the possibility of a 4-4 split of the Court exists. The general assumption has been that the four justices nominated by Democratic presidents—Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan—will favor the president's authority to implement the programs, and that for the administration to win the case, it would need the vote of at least one of the justices appointed by a Republican president. Justice Scalia, by all accounts, was not likely to be persuaded to a favorable opinion of the administration's arguments.

Once again it appears that Justice Anthony Kennedy, often seen as the Supreme Court's "swing vote," would be the one to assume that role in this case if the administration is to succeed. Justice Kennedy has been a swing vote in some prior immigration cases and wrote the majority opinion in Arizona v. United States, 132 S. Ct. 2492, (2012), which "recognized the broad authority the president has in making immigration enforcement decisions, particularly deferred action."

However, if Justice Kennedy's opinion is that DACA and DAPA should be enjoined, a split decision will mean that the lower-court holding stands and that President Obama's executive action on immigration will remain enjoined. Critically, any opinion issued by the Supreme Court would not be precedent-setting; rather, the Fifth Circuit's order will stand, but only be binding precedent in the Fifth CircuitLouisiana, Mississippi, and Texas. If that happens, the Justice Department may obtain an order from a different circuit upholding the President's authority to implement DAPA and DACA. The Fifth Circuit is among the most conservative courts in the country and it is unlikely that every circuit will follow its lead. There will be competing court orders holding DAPA and DACA both legal and illegal, and no immediate possibility of Supreme Court review. It is not immediately clear what happens in such a case.

What is also interesting about this situation is that the lower court's holding is in the injunction phase, before a trial on the merits. This means that if the Supreme Court were to split evenly, a hearing on the merits of the case is still likely to be held by the lower court. At some point after that, it is possible that the case would be appealed back up to the Supreme Court. This would presumably happen after a new justice has been appointed.

"If the Court's decision is split 4-4, that would have tremendous consequences for people facing deportation. Immigrants would be treated differently under the law because of where they reside, meaning that established families (which include U.S. citizen spouses and children) will be forced to choose to relocate to jurisdictions that will grant them access to the DAPA and expanded DACA deferred action programs, or fracture."

Even if the case ultimately ends up before the Court again, a 4-4 split on the present case will have tremendous social consequences for people facing deportation without DACA or DAPA in the meantime. Immigrants would then be treated differently under the law because of where they reside, meaning that established families (which include U.S. citizen spouses and children) will be forced to choose to relocate to jurisdictions that will grant them access to the DAPA and expanded DACA deferred action programs, or fracture.

U.S. v. Texas raises numerous important and interesting issues, from standing to executive power to immigration policy. The effects of its outcome alone warrant following the events surrounding the case carefully and may factor into the debate concerning the appointment of Justice Scalia's successor on the Court. That debate may also focus needed political and public attention upon this nation's immigration policy and enforcement. Even after his passing, the legacy and influence of Justice Scalia continue to shape the legal and political landscape of the United States.