The death of Supreme Court Justice Antonin Scalia adds uncertainty to the pending case before the Court regarding the legality of President Obama’s DAPA program.
The case, United States v. Texas, is scheduled on the Supreme Court’s current docket. Of course, it’s uncertain how each individual justice will vote in the case, but it’s fair to guess that Justice Scalia might have concluded that the DAPA program is unconstitutional or otherwise in violation of the law.
President Obama has indicated that he plans to nominate a person to fill the vacancy on the Supreme Court. So far, Republican Senate leaders have indicated that they plan to block or otherwise thwart President Obama’s efforts to fill the vacancy before he leaves office on January 20, 2017.
If the DAPA case is heard by the current 8 justices on the Supreme Court, there is the possibility that the justices could split 4-4 on the legality of the program. A 4-4 split would leave the lower court’s ruling intact. In that scenario, DAPA would not be able to be implemented.
It’s possible, although unlikely, that the Senate would confirm President Obama’s nominee to the Court by the time the DAPA case is argued.
Another possibility is that the Court would decide to postpone the hearing of the DAPA case until the next term, which begins in October 2016. In that scenario, it is likely that a decision would not be issued in the case in time for President Obama to begin implementation of the DAPA program before he leaves office.