Antonin Scalia. (photo: Alex Wong/Getty Images)
Ian Millhiser | Think Progress | Reader Supported News | November 23, 2015
fter a slow crawl through the lower federal courts, the fate of President Obama’s long-delayed immigration programs is finally before the Supreme Court. On Friday, the Justice Department asked the Supreme Court to hear their appeal of a trial judge’s order halting the programs. Nevertheless, because of a quirk of the Supreme Court’s scheduling process, the fate of these programs — or, at least — the question of whether they will be implemented while Obama is still in office, could rest with one of the justices who is least likely to be sympathetic to the undocumented immigrants who will benefit from the programs: Justice Antonin Scalia.
The Story So Far
Last February, Judge Andrew Hanen, a federal judge with a history of advocacy for harsher immigration policies, halted the creation of a new program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) as well as the expansion of the existing Deferred Action for Childhood Arrivals (DACA) program. Together, these two changes to immigration policy were expected to allow 4.9 million undocumented immigrants to temporarily reside in the country without fear of deportation.
Since that decision, the Obama administration has had a string of extraordinarily bad luck in a federal court of appeals. The United States Court of Appeals for the Fifth Circuit is a conservative court, but its judges do not always vote conservatively in immigration cases. Indeed, in the most recent major immigration case to be decided by the full court, the judges voted 9-6 to strike down an ordinance that effectively made it a crime for undocumented immigrants to rent a home. Nevertheless, when the Justice Department sought a stay of Hanen’s order suspending DAPA and expanded DACA, they drew a three-judge panel dominated by two of the dissenters in that last immigration case. Those two dissenters, Judges Jerry Smith and Jennifer Elrod, joined a 2-1 opinion refusing to stay Hanen’s order.