Bloomberg
By Laura Francis
February 18, 2016
Despite
the potential impact on other high-profile U.S. Supreme Court cases,
Justice Antonin Scalia's Feb. 13 death may have little to no effect on
the upcoming case involving
President Barack Obama's immigration programs, practitioners told
Bloomberg BNA Feb. 17.
“The
general assumption” is 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, according to
Muzaffar Chishti, director of the Migration Policy Institute's office at
the New York University School of Law.
For
the administration to win the case, it needed the vote of at least one
of the justices appointed by a Republican president. “Justice Scalia by
all accounts was not
one of those,” Chishti told Bloomberg BNA.
Tie Vote Possible
Stephen
Yale-Loehr of Miller Mayer in Ithaca, N.Y., said the case might have
split 5-4 in favor of the states if Scalia remained on the court, which
would result in a
4-4 tie without him.
A tie vote means there is no Supreme Court precedent, and the lower court's decision stands.
That
would be bad news for the Obama administration, as the U.S. Court of
Appeals for the Fifth Circuit held in November that the president
exceeded his authority by establishing
the expanded deferred action for childhood arrivals program and
deferred action for parents of Americans and lawful permanent residents
program .
The
case involves a challenge brought by Texas and 25 other states to those
programs , both of which are part of the president's executive action
on immigration; Texas
v. United States, 86 F.Supp.3d 591, 2015 BL 39832 (S.D. Tex. 2015).
A
4-4 tie vote would have a “silver lining” for the administration: The
lack of a precedential decision from the Supreme Court also would mean
the Fifth Circuit's decision
isn't binding in other parts of the country, Chishti said.
“The
case so far is only about an injunction,” and the only thing a 4-4
Supreme Court case would affirm would be the propriety of that
injunction, Chishti told Bloomberg
BNA. That means the underlying case would go forward in the district
court, and “the outcome of that case on the merits could then wind
itself back into the Supreme Court,” he said.
‘Administration Has a Very Strong Case.'
But
Cleveland attorney David Leopold said he's convinced Scalia's absence
won't make a difference. “I don't think that we're necessarily looking
at a 4-4 decision,” he
said.
“The
administration has a very strong case,” and “I do strongly believe that
the court is going to reverse the Fifth Circuit,” according to Leopold,
a past president and
general counsel of the American Immigration Lawyers Association.
The
case “was a political case from the get-go,” intended to “put a monkey
wrench in the discretionary enforcement decision of a president,”
Leopold told Bloomberg BNA.
The
politically sensitive nature of the case could, however, cause the
Supreme Court to postpone oral argument or rehear arguments after the
confirmation of a ninth justice,
Chishti said.
“The
Supreme Court doesn't want to wade into political waters,” although it
is “very difficult to speculate” as to what the justices will do, he
said.
‘Kennedy Could Be a Key.'
Justice
Anthony Kennedy, often seen as the Supreme Court's “swing vote,” also
is expected to assume that role in the immigration case.
Kennedy
“has been a swing vote in some immigration cases before,” according to
Yale-Loehr, who is also a professor of immigration law practice at
Cornell University Law
School. “Kennedy could be a key.”
Leopold
pointed out that Kennedy, who wrote the majority opinion in Arizona v.
United States, 132 S. Ct. 2492, 2012 BL 157302, 115 FEP Cases 353
(2012), “recognized the
broad authority the president has in making immigration enforcement
decisions, particularly deferred action” .
Yale-Loehr
also said Chief Justice John Roberts “came out in favor of the federal
government” in the Arizona decision. However, Roberts's view that the
federal government
and not the states has the power and duty to control immigration
doesn't necessarily translate to a finding for the administration in
this instance.
On
the other hand, Leopold said Roberts is “very adamant about keeping
politics out of the courtroom,” and he is “very adamant about standing.”
That could mean his vote
ultimately influences a decision on the standing issue.
“It still comes down to what Justice Kennedy thinks about it,” Chishti said. “Justice Roberts would be a bonus.”
May Be Decided on Standing Grounds
Leopold
said there is a “very good chance” that the case will be dismissed on
standing grounds. “The absence of Justice Scalia doesn't change the
outcome,” even assuming
he would have ruled in favor of the states.
Yale-Loehr
told Bloomberg BNA that the court's request that the parties submit
briefs addressing the take care clause of the U.S. Constitution isn't
necessarily an indication
that they're planning on ruling on the merits. “Certainly they'd have
to get past the standing issue to get to the merits,” he said.
The
take care clause issue involves the allegation that the administration
isn't enforcing immigration law, and thus is violating the executive's
constitutional duty to
“take care that the laws be faithfully executed.”
Neither the district court nor the Fifth Circuit have ruled on the issue.
“They wanted it all in front of them, but they could still dismiss it on standing,” Leopold added.
Potential Outcomes
Yale-Loehr
said there are three possible outcomes on the standing issue: a
majority decision that the states don't have standing; a majority
decision that the states do
have standing; and a 4-4 tie, leaving the Fifth Circuit's decision—that
the states do have standing—in place. The latter two outcomes would
require the court to address the merits, he said.
The
same three scenarios are possible for a merits decision by the
justices, although that outcome is complicated by the various issues at
play.
They
include: whether the deferred action programs should have gone through
notice-and-comment rulemaking as set forth in the Administrative
Procedure Act, the basis for
the underlying injunction; whether the programs go beyond the scope of
the executive's power under the Immigration and Nationality Act; and
whether the executive branch violated the take care clause.
Even
if the justices rule in favor of the administration on the INA and
constitutional issues, a decision that the programs require
notice-and-comment rulemaking under
the APA is a loss for the president, Yale-Loehr said.
He
told Bloomberg BNA that the administration wouldn't have time to go
through the process before Obama leaves office in January.
Yale-Loehr
said it is possible that the justices could issue a narrow opinion
focusing solely on the preliminary injunction, without getting into the
merits. A majority
decision that notice-and-comment rulemaking wasn't necessary—without
addressing the other issues—would mean the programs could be implemented
while the merits are debated in the lower courts.
Leopold said that scenario is unlikely. “I think you're looking at a court that wants to resolve this matter.”
For more information, go to: www.beverlyhillsimmigrationlaw.com
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