The future of the United States Supreme Court, and an estimated four million immigrants affected by its upcoming decision on DAPA, lies in the balance due to the death of Justice Antonin Scalia, the former leader of the court’s dominant conservative contingency. There is no way for Scalia's seat to be filled before the DAPA hearing (United States v. Texas), which is scheduled to commence in April. Thus, Justice Scalia’s death leaves the court with two basic options in dealing with the Immigration Executive Order case, if the justices are deadlocked at 4 to 4, regarding whether to allow DAPA to proceed. One is an automatic affirmation of the lower court decision, which would terminate the possibility of DAPA. The other is to set the case aside for re-argument in the term that starts in October in the hope that it will be decided by a full court, which would provide better odds that DAPA would be approved.
Should President Obama be allowed to exercise his constitutional responsibility in nominating a successor and select a Democratic candidate with a pro-immigration stance, then the chances of DAPA being passed would be extremely high. The problem is that many Republicans in Congress are vowing to reject any nominees set forth for consideration by Obama in a political game-playing effort to stall an appointment of a Democratic appointee. Senate Majority Leader, Mitch McConnell, although the husband of an immigrant, has a history of voting against immigration reform and opposing DAPA, vocalized his strong opposition to filling Scalia's vacancy during Obama's term.
There are two other interesting pieces to the puzzle of whether or not DAPA will be passed. Although the court’s Democratic appointees are expected to back DAPA, it has been hypothesized that Justice Sotomayor may possibly recuse herself from the case for having strong ties to some of the groups championing DAPA. The other wrinkle in the DAPA case is Justice Anthony Kennedy, whose opinion about DAPA and his potential ruling for or against DAPA is currently unclear.
There is no doubt that Justice Scalia's passing will affect DAPA. New Jersey Immigration Attorney Edward Shulman is on the pulse of newsworthy events impacting DAPA. Please continue to visit the Shulman Law Group website for up-to-date information regarding DAPA and other immigration-related topics. Likewise, if you, a colleague, friend, neighbor, or family member may qualify for DAPA benefits, please schedule a consultation to determine DAPA eligibility and begin the process of documentation accumulation and preparation. Indeed, should DAPA be passed, we would like our clients to be at the front of the line in terms of receiving DAPA benefits with the upmost expediency.