By Joe Guzzardi
March 15, 2016
Senior Associate Supreme Court Justice Antonin Scalia’s sudden death has set off a firestorm of Washington speculation as to what may happen next. President Obama has promised to nominate a replacement “in due time” while Senate Majority leader Mitch McConnell has promised that no vote will be taken until a new president is inaugurated.
McConnell’s stance is in part political payback for Obama running roughshod over the Republican-controlled Congress, and in equal part because vulnerable GOP Senate incumbents don’t want to vote on a new Supreme Court justice—-too politically dicey. In November, Republicans will defend 24 of the 36 Senate seats on the ballot.
Whatever may happen, a lot of D.C. intrigue awaits. Odds are that Obama will nominate his ideological equal—pro-gay marriage, pro-life, pro-immigration reform amnesty—a move that would certainly result in the Senate never considering president’s candidate. That would leave the Court evenly divided with four conservative and four liberal-leaning justices, problematic since six controversial cases are on the docket. Among them are pending decisions on union fees, affirmative action, abortion, religious liberty, election districts, and the most contentious of all, immigration.
In April, the court plans to hear U.S. v. Texas, the Obama administration’s appeal of U.S. District Court Andrew Hanen’s and the New Orleans’s Fifth Circuit Court of Appeals injunctions that blocked the president’s executive action which authorized a temporary stay on deportation, granted work permits and other entitlements to more than four million illegal immigrants. Enforcement advocates will sorely miss Scalia’s vote which would have upheld the lower courts’ decisions that while the White House has discretion over deportation, it cannot confer financial benefits to unlawful immigrants.
Assuming no new justice is confirmed and the court remains divided at 4-4, Justice Arthur Kennedy would likely represent the swing vote. If Kennedy joins with the court’s four liberals, they could set aside the Judge Hanen’s order and allow President Obama’s amnesty to take effect during his final months in office. However, if Kennedy votes with the three remaining conservatives to determine that Obama’s order is unconstitutional, the court would be deadlocked, thereby keeping the judges’ earlier orders in place and blocking Obama's program. Some Capitol Hill insiders think Kennedy, knowing his vote would be pivotal, will opt for the less controversial 4-4 deadlock. A decision is expected in June.
U.S. v. Texas has no merits and the Court should never have agreed to hear it. Immigration analyst Daniel Horowitz irrefutably argues that the Constitution grants Congress plenary authority over immigration policy, and that Congress never approved Obama’s executive action. Furthermore, Obama’s blatant immigration lawlessness is preempted by Section 1225(b)(2)(A) of the 1965 Immigration and Naturalization Act, duly passed by Congress, which requires ICE agents to place all illegal aliens into removal proceedings. Instead, Obama seeks to protect, through what he alleges is prosecutorial discretion, millions of illegal immigrants from deportation, and to also reward them with benefits, a gross Executive Branch overreach.
With or without a new justice, no one can safely predict the outcome. In 2012, Chief Justice John Roberts and Kennedy, Republican appointees, struck down several enforcement provisions included in Arizona’s SB 1070. Kennedy’s opinion stated that the Executive Branch has “broad discretion” over who is removed, and that the administration “must decide whether it makes sense to pursue removal at all.” Those earlier opinions would indicate sympathy with the Obama White House.