By Pamela Chan
April 13, 2016
Caption : President Obama is facing the very real possibility of a deadlock at the Supreme Court that guarantees his immigration actions won’t take effect before he leaves office.     

For some time now, DAPA beneficiaries have been “living under a Sword of Damocles, knowing that their ability to remain in the country [could] be stripped from them in an instant,” according to a recent piece from ThinkProgress.

Writer Ian Millhiser (an employee of the Center for American Progress) is referring, of course, to the ever-present fear that lingers among 4.9 million undocumented immigrants who have been waiting for what seems like forever to learn the outcome of their fates in the United States—i.e. whether or not they will be allowed to continue to temporarily work and live within the country. The Obama administration’s Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) policies would allow many undocumented immigrants to do just that, but are currently on hold, awaiting judgement from the Supreme Court.

Oral arguments in United States v. Texas, the case which will determine the constitutionality of DACA and DAPA, are set for Monday, April 18, meaning that a decision could come as soon as late June. But because of the unexpected death of Supreme Court Justice Antonin Scalia this past February, coupled with a contentious fight over Obama’s nominee, Merrick Garland, there are just eight justices on the court, creating the possibility of a 4-4 tie. In the case of a tie, the lower court ruling holds, but only applies to its jurisdiction, furthering a patchwork of inconsistent laws throughout the country.

Just late last month, this exact scenario played out in Friedrichs vs. California Teachers Association late last month, when the court split 4-4 in an important case concerning unions’ ability to collect fees from non-union members who benefited from their collective bargaining. The split left the lower court ruling, and unions’ right to collect fees from non-union members, in tact, but failed to create national precedent.

In terms of Obama’s immigration actions, observers of the court believe it might once again split 4-4, which would guarantee that the president’s immigration actions would not take effect before he leaves the Oval office, putting millions of people’s lives on hold.

“I don’t have a crystal ball, but it’s certainly possible,” says Texas Attorney General Ken Paxton of the potential for an event split.

The central issue in the case boils down to whether the executive branch has the power to permit millions of individuals to remain in the country without seeking additional authority from Congress—or as Paxton puts it, “the rule of law.”

If the president can change the law, “we’re talking about a whole different country, a whole different Constitution,” he insists. And though Paxton hopes the justices will unanimously side with the states, he says that a deadlocked decision would still be a victory as it would allow them to return to lower courts and to fully argue the case on the merits. “A win’s a win,” he says. “We want more than a preliminary injunction. We want a ruling on the merits that this action by the president is unlawful.”

Yet supporters of the Obama administration argue that Scalia’s death will have no real effect on the case, predicting that Chief Justice John Roberts and Justice Anthony Kennedy could very likely rule in the administration’s favor. “I cannot predict the way the case will come out, but I do think we are on very solid legal ground,” says Melissa Crow, legal director for the American Immigration Council, which joined a brief in support of the administration. “I don’t think Scalia’s death set us back in any way.”

Along with other backers, she hopes that the court will find that the 26 states challenging Obama’s actions do not have standing to sue over the immigration actions. “The possibility that the case could go forward on such tenuous grounds is frightening,” Crow notes. “It would enable states to essentially have unilateral veto power over federal policies not only in the immigration arena, but other areas where the federal government is steering the course.”

Other groups are just hoping for a dismissal, saying that it is rather unusual for the Supreme Court to rule on preliminary injunctions. “The government is trying to get the Supreme Court to decide the merits of the case before the merits of the case are decided in the lower courts,” says John Miano, counsel for Save Jobs USA and the Washington Alliance of Technology Workers.

“The best outcome in the Texas case is for the Supreme Court to recognize its mistake and dismiss the writ of certiorari as improvidently granted and let the case proceed.”

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