DAPA/DACA and Justice Scalia’s Replacement


The passing of Supreme Court Justice Antonin Scalia raised many pertinent about the future of the Supreme Court and, more importantly, whether the effects of Scalia’s judicial decisions would be overturned or discarded at the possibility of a liberal majority in the Supreme Court.

There has been speculation in changes everywhere from the Citizens United case to the pivotal Second Amendment court decisions, and of course the topic of immigration and its future realignment has also been visited by experts. Unfortunately, it seems unlikely that the new Supreme Court will be able to change this area significantly any time soon.

The truth is that the President of the United States, and the executive branch in general, has the liberty of enforcing immigration regulations to the best of his judgment and capacity, a concept which the Supreme Court itself has upheld time and time again.

After all, Scalia dissented in the 2012 case Arizona v. United States, where the eponymous state attempted to pass a bill making it a crime to be unlawfully in the United States and requiring state and local officers to verify the citizenship status of anyone who was lawfully arrested or detained. The Supreme Court found the state law to be unconstitutional, since federal law, and executive order, preempted the state’s own decisions.

Recently, the Supreme Court has decided to hear United States v. Texas, where the state of Texas has challenged the federal government’s enactment of DAPA. Due to Justice Scalia’s passing, the Supreme Court will have to hear the case with only 8 justices on the bench.

Even if somehow a justice who has previously upheld the act changed his stance, an even split in the court would not lead to binding precedent being set on the courts below. It seems very likely that if the Supreme Court were to pass a landmark decision on immigration, it will not happen this year.