This year, the U.S. Supreme Court is scheduled to hear arguments regarding President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), and expanded Deferred Action for Childhood Arrivals (DACA). The case revolves around the President’s right to withhold prosecution in certain immigration cases. Traditionally, the Department of Justice (which acts at the behest of the President) has discretion regarding which cases it prosecutes. President Obama issued broad guidelines to the Department of Justice, instructing them to stop actively prosecuting a number of people who are here illegally. President Obama defined categories of people who have committed no major crimes, and who have relatives who are U.S. Citizens or in some cases Permanent Residents. He then instructed the Department of Justice to make those cases a very low priority and stop pursuing them.
This decision by the President was politically controversial, however it appears to be well within a President’s authority to issue policies and prioritize which cases are to be prosecuted. The case which is currently before the Supreme Court is about whether the President has the authority to create these programs.
Sometimes the Supreme Court will issue a unanimous decision, with all the Justices agreeing in a “9-to-0” decision. In other cases, we might see a “3-to-6 or even a “5-to-4 split decision.” Ties are usually avoided because there are 9 Justices on the Court, and 9 is not evenly divisible by 2. But with the sudden death of Supreme Court Justice Scalia, the Supreme Court could wind up in an unusual position of being in a “tie” with 4 votes cast in favor of recognizing the President’s authority, and 4 votes against.
Cases typically come to the Supreme Court because they involve an issue that lower federal courts (Appeals Courts) can not agree upon. One of the Appeals Court cases is normally selected, and taken before the Supreme Court to be argued. The Supreme Court’s decision is announced, and all the Appeals Courts use that decision as guidance in order to align with the Supreme Court’s findings and provide more consistent decisions.
If there is a tie within the Supreme Court (which is possible in the untimely absence of Justice Scalia, leaving us with only 8 Justices), the lower court ruling stands. However, it appears that the DACA and DAPA programs are well within President Obama’s authority which grants the Department of Justice the right to exercise discretion as policy. While it is impossible to predict the outcome of the case before the Supreme Court, I suspect the 8-member Court will still find overwhelmingly in favor of the President. But any court case can be unpredictable, so it remains to be seen.
More importantly, these executive actions by the President can be revoked by the President at any time. In January of 2017 we will swear in a new President of the United States. When a new President enters office, that President can freely revoke these programs. These programs were rather easily created, and they can also be easily destroyed.