Divided SCOTUS Puts Obama's Executive Amnesty on Life Support

So, this is a little bit complicated. With the death of Antonin Scalia, the Supreme Court was unable to resolve a 4-4 deadlock on the Obama Administration’s DAPA program. What this means is that the lower court decision – a 5th Circuit opinion upholding a nationwide preliminary injunction preventing the enforcement of the program – will stand.

Given that the Obama administration’s expanded DACA program is on even shakier legal ground than DAPA, and given the way the Supreme Court broke down in ruling on this case, it looks like the Obama administration’s executive amnesty program is in dire straits, although all is not lost and an avenue still exists for the Obama administration to prevail, especially if a liberal judge is appointed to replace Scalia.

Since the current injunction preventing implementation of the program is just a preliminary injunction, the Obama administration can effectively restart the appeals process when and if the District Court attempts to make the injunction final. Normally, a ruling from the Supreme Court affirming a preliminary injunction – which must, of necessity, declare that the other side is “likely to win on the merits” would prevent the government from expending a tremendous amount of time and effort going through the process again for what would almost certainly be a total loss.

However, the Obama administration has reason to try, and that reason, of course, is the fact that the current members of the Supreme Court are deadlocked on the issue, and it is ultimately likely to be decided by a replacement justice. By the time the appeals process winds through again, it is at least possible (probable, frankly) that the replacement justice in question will be seated. Thus, the Obama administration might as well try.

On the other hand, doing so will provide another political arrow in Donald Trump’s quiver, as he can reach out to wobbly Republicans and conservatives and establish himself as the only thing standing between them and Obama’s executive amnesty program. However, if I were Obama, I would bet on the fact that Trump’s aim is crappy and he seems to be perpetually drunk and stoned anyway, so the arrow will likely be wasted. Accordingly, I would bet they fight this thing tooth and nail, wagering that President Clinton’s nominee will uphold the program in the end.

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