What Does Justice Scalia’s Passing Mean for DAPA?

On February 13, 2016, Justice Antonin Scalia passed away after 30 years of service on the Supreme Court. Justice Scalia’s passing leaves the Court with eight justices.

While Justice Scalia was undoubtedly an influential member on the bench, his absence is unlikely to affect the pending case regarding the Deferred Action for Parental Accountability (DAPA) program and the expansion of Deferred Action for Childhood Arrivals (DACA) program.

The federal government, seeking to overturn the lower court’s ruling and implement the programs, was always going to need five justices to rule in its favor. Most expected Justice Scalia, along with Justices Thomas and Alito, to vote to uphold the lower court’s ruling to continue to block implementation of the programs.  That left, and continues to leave, six possible votes from the remaining members of the Court.  The federal government therefore needs to get at least five of those remaining six votes in order to win the case and implement DAPA and expanded DACA.  The remaining six justices are: Ginsburg, Breyer, Kagan, Sotomayor, Roberts, and Kennedy.  The first four of those justices are thought to be likely to vote to rule in favor of the federal government.

If all of this turns out as expected, the decision will come down to whether the federal government can convince either Chief Justice Roberts or Justice Kennedy to rule in its favor. If it can get one or both of those votes, it should be able to win the case and implement the programs later this year.  If it cannot, then the best it will be able to do would be a 4-4 tie, which would leave the lower court’s ruling undisturbed.