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Justice Scalia’s Death: What It Means for United States v. Texas

On Behalf of | Apr 9, 2016 | Firm News

The Supreme Court of the United States is set to decide United States v. Texas, the case regarding the constitutionality of President Obama’s new immigration policies, in June 2016. When Antonin Scalia—one of the nine Justices on the Supreme Court—passed away, the outcome of this monumental case became more uncertain.

President Obama proposed a new immigration policy in November 2014. The name of these programs is expanded DACA (expanded Deferred Action for Childhood Arrivals) and DAPA (Deferred Action for Parents of American and Lawful Permanent Residents). These programs would allow certain immigrants to avoid being removed from the United States and to apply for employment authorization. However, in early 2015, the District Court for the Southern District of Texas issued a preliminary injunction, preventing the program’s implementation. The injunction was appealed to the Fifth Circuit Court of Appeals. That Court upheld the injunction in November 2015. The Department of Justice appealed this decision to the U.S. Supreme Court. The Supreme Court agreed to hear this case, and should deliver a ruling in June 2016.

The Supreme Court usually has nine justices. One of the justices, Justice Antonin Scalia, passed away on February 13, 2016, leaving the Court with only eight members. The President has the power to nominate a new justice, but this individual must be confirmed by the Senate. Justice Scalia is known for his conservative views, and the Senate is currently majority Republican. This will make it difficult for democratic President Obama to have a liberal justice confirmed by the Senate. During the interim—while there are only eight justices—a tie vote means that the lower court’s decision will stand. A tie vote would not become precedent. The Supreme Court could agree to hear the case again in the future, but for the time being, it would still be a ruling upon which action can or cannot be taken. There is still a chance that President Obama will pick a middle-of-the-road nominee that could be confirmed by the Senate, but probably not until after the United States v. Texas decision.

As for the expanded DACA and DAPA programs, Scalia’s death may have created unforeseen consequences. The United States v. Texas decision will still be decided by the Supreme Court in June 2016. Before Scalia’s death, scholars dissected the potential outcome of this case—some argued that it is a “political weapon” not appropriate for the judicial branch, and others argued that the federal government has clearly overstepped its executive power in creating the DACA and DAPA programs. See Kevin Johnson,, Symposium: United States v. Texas – The road to perpetual immigration gridlock?, Feb. 11, 2016, available at

After Scalia’s death, the arguments remain substantially similar. Scalia was never known as sympathetic to immigration in the United States. He likely would have voted against expanded DACA and DAPA. Without him, the ninth “vote,” so to speak, is the lower court’s decision. Here, that decision upheld the injunction preventing DACA and DAPA from being implemented. Essentially, this would count as a vote against DACA and DAPA, just like Justice Scalia would have done. However, other scholars argue that Scalia’s death has given the Supreme Court an out—instead of deciding the case in June like they would have before, they can now easily affirm the lower court’s ruling with a 4-4 vote and no decision, or the decision could be postponed until a ninth Justice is nominated and confirmed during the upcoming administration. See Forbes, Did Scalia’s Death Just Win The Texas Immigration Case For Obama?, Feb. 16, 2016, available at The short answer to whether Scalia’s death will affect the United States v. Texas case is “no one knows,” but the case is moving along quicker than we realize. Briefs and appendices have been filed, oral argument was heard earlier this week, and the expected month of decision—June—is not too far away.