By Dennis Stinchcomb

Photo Credit: Ted Eytan / Flickr / Creative Commons

The passing of Supreme Court Justice Antonin Scalia reshuffles the deck of possible outcomes in the highly politicized case involving President Obama’s executive actions on immigration.  When the White House petitioned the Court to review its dispute with Texas and 25 other states, it could not have imagined a result that now appears to be possible: a tie.  An evenly split decision would mean that the injunction against the measures issued by the lower court – the Fifth Circuit – would stand, an outcome that critics of Obama’s executive actions would herald as a triumph.  It may, however, also prove to be a safety net for the Administration and the over five million undocumented immigrants whose status is at stake because the law stipulates that a tie vote is not precedent-setting.  That means that the underlying case would proceed to trial in Texas district court – and could then potentially find its way back onto the Supreme Court’s docket, perhaps under more favorable conditions for a future Democratic administration.

This is, of course, purely speculative as a complex web of scenarios remain in play, including:

• A 5-3 Decision in Favor of the Administration: If the Court finds that the states do not have the right (or standing) to sue the President, the case will be immediately dismissed.  A decision recognizing the states’ right to sue would force the Court to address the other two matters at stake – whether the President’s actions are consistent with existing immigration law, and whether he met the requirements for public notice and comment.  Some experts believe that members of the Court’s conservative wing may side with the Administration on these questions, striking down the injunction and allowing the deferred action programs to proceed.
• A 3-5 Decision in Favor of Texas: A majority ruling against the Administration seems most plausible on the constitutional issue of whether the President abdicated his responsibility to “take care that the laws be faithfully executed.”  Though the Court had appended the separation-of-powers question to the roster of issues under consideration, it is under no obligation to hand down such a wide-reaching decision.  But should the case become a constitutional showdown, it is not inconceivable that a member of the Court’s liberal bloc might side with conservatives to prevent what would amount to be a significant expansion of executive authority – and an undermining of the judiciary’s ability to curb excesses.  Observers say it is less likely that a liberal would find the Administration in violation of immigration law or public notification procedures.

Beyond the struggle between the President and his opponents in the U.S. Senate over whether a successor to Scalia should be confirmed this year, the prospect of a tie in U.S. v. Texas and the potential for a rematch down the road has raised the stakes in this U.S. election year.  Candidates from both parties have been calling on voters to transform the November election into a referendum on the Supreme Court.  At least on the immigration front, the presidential nominees and voters alike will have to wait until the Court announces its decision in mid-summer to find out what exactly has been won or lost, and what more can be done or undone.  Though a tie would leave open the door for the legal merits of the case to be revisited by a full complement of justices under a new president during a non-election year, such a scenario is hardly ideal for the outgoing Administration.  The possibility that victory in the short-term for immigration conservatives could translate into a permanent victory should the Republican nominee win the presidency is a gamble the Administration would rather not face. 

 February 29, 2016