Supreme Court composition and prospects of US v. Texas after Justice Scalia


The passing away of Justice Antonin Scalia on February 13, 2016, has already become the subject of intense discussions on Sunday talk shows and newspapers on how it will affect the path of the Supreme Court. A fiercely conservative, combative, and highly intellectual justice, his passing leaves a large void on the conservative side of the court. Questions here are whether the Obama Administration will be able to fill the seat with a candidate of its choosing and what the effect of his passing will have on the current immigration case pending before it, US v. Texas, Docket #15-674.

At this time, the hope of appointing someone who could move the Court to a more center-left position appears to be a long shot. The opportunity was present in 2014 if the Democrats had succeeded in holding onto the Senate in the midterm elections. A resounding defeat was ensured (in this writer's opinion) by the Administration's failure to announce the executive actions on immigration in the early summer of 2014 when Hispanics and other pro-immigration forces could have been energized to heavily campaign on behalf of candidates in battleground states. (See our article, “What Is the Political Calculus on Immigration Reform?” Immigration Daily, 6/10/14). A Senate hold then could now be the vehicle to pressure Senate Republicans in confirmation hearings to approve a reasonable candidate with at least middle-of-the-road credentials. The threat of expanding the "nuclear option" to Supreme Court nominations (the Senate dropped "nuclear option lite" on Republicans in November 2013 to stop filibusters over executive appointments by eliminating the requirement of a supermajority of 60 and replacing it with a simple majority of 51, but did not extend it to legislative actions or judicial appointments) would have the power to encourage compromise on an appropriate candidate. (See our further articles "Filibuster Ending a Shot across the Bow for Republicans When Considering Comprehensive Immigration Reform", Immigration Daily 7/22/13, and "Will 'Nuclear Option Lite' Be Enough to Advance Immigration Reform Significantly?", Immigration Daily 11/25/13). Instead Republican politicians are currently talking about not filling the seat until Mr. Obama is out of office or even through the next term of the Supreme Court, June 2017. Doubtless they will now dream up imposing litmus tests based on a conservative agenda and filibuster unwanted candidates until they are withdrawn. As they now hold the reins of power in the Senate, there is even question as to whether the Senate leadership will allow hearings much less a confirmation vote to be held. The majority leader, Mitch McConnell (R-Kentucky) said that the vacancy should not be filled until after the presidential election.

US v. Texas , a suit by 26 states, arose from the executive actions on immigration of President Obama on November 20, 2014, especially focusing on the portion, Deferred Action for Parental Accountability (DAPA), which would give over 4 million qualified undocumented immigrants safety from deportation and work authorization for three years. The states won their suit in rulings by a Texas district court and the Fifth Circuit Court of Appeals, and upon government appeal, is due to be heard before the Supreme Court in April with an expected decision in June 2016. US v. Texas will likely not be affected by the passing of Justice Scalia. He was a supporter of states' rights versus the federal government, and would likely have sided with the 26 suing states instead of the Administration. A strong indication of how he may have voted can be seen in the last large immigration case before the Court, the 2012 case of Arizona v. U.S., 132 S.Ct. 2492, 183 L.Ed. 2d 351 (2012), pitting states’ rights against federal government control of immigration policy. Justice Scalia was the leading dissenter beginning his dissent with the words:

The United States is an indivisible “union of sovereign States.” Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 104 (1938). Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.

In looking at the voting in Arizona, Justice Anthony Kennedy wrote the opinion and concurring were Chief Justice John Roberts, Justices Ruth Ginsburg, Stephen G. Breyer and Sonia Sotomayor. Dissenters other than Justice Scalia were Justices Clarence Thomas and Samuel A. Alito, Jr. Justice Elena Kagan recused herself. There will likely be eight justices participating in U.S. v. Texas, the same number that decided the Arizona case. Justice Kagan is liberal, but also a defender of states’ rights as seen by her concurrence on the Obamacare case, Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 183 L. Ed. 2d 450, (2012), allowing states to opt out of the law’s expansion of Medicaid. A good question will also be where Chief Justice Roberts stands on the question. His vote for the Administration’s position in Arizona cannot be seen as a positive signal for U.S. v. Texas. The Chief Justice looks upon himself as a unifier, loves clear decisions, and Arizona was a case in which a 4-4 tie would have been a win for the Administration anyway, as the states had lost in the Ninth Circuit before bringing the writ of certiorari before the Court. In this case, the Administration is the appealing body, and a tie would be a win for the states as the lower court rulings would stand.

In the end, the passing away of Justice Scalia is a monumental loss to conservatives, a challenge for the Administration to fill the vacancy, but not expected by this writer to change the justice voting in US v. Texas.

Reprinted with permission.

About The Author

Alan Lee, Esq. Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.