Immigration
United States v. Texas concerns the legality of Obama administration immigration policies that, if allowed to take effect, will temporarily enable close to five million undocumented immigrants to remain in the county. It is also the case that presents the most opportunity for chaos if the Court evenly divides on the outcome.
In a highly unusual order, a federal district judge issued a nationwide halt to the policy and refused to stay that decision. A conservative panel of the conservative United States Court of Appeals for the Fifth Circuit upheld those decisions by the district judge. Thus, if the Court splits 4-4 in the Texas case, the Fifth Circuit’s order will stand.
Where things get complicated is if the Justice Department successfully obtains an order from a different circuit upholding the program, or if an immigrant who hopes to benefit from the program obtains a similar order. The Fifth Circuit is among the most conservative courts in the country, and it is unlikely that every circuit will follow its lead. In that case, there will be competing court orders holding the policies both legal and illegal, and no possibility of Supreme Court review. It is not immediately clear what happens in such a case.
Abortion
Another case out of Texas, Whole Woman’s Health v. Hellerstedt, also could lead to confusion if the Court evenly divides. Whole Woman’s Health is the greatest threat to Roe v. Wade to reach the Supreme Court in a generation. If five justices back the Texas law in this case, it is unclear that there will be any meaningful limits on states’ ability to pass anti-abortion laws.
Without Scalia’s vote, however, the chances that the Supreme Court will uphold the Texas law outright is vanishingly small. Should they split 4-4, however, the Fifth Circuit’s decision upholding the Texas law will stand and states within the Fifth Circuit (Louisiana, Texas and Mississippi) will most likely gain broad discretion to restrict abortion while Scalia’s seat remains open. Meanwhile, the fate of the right to choose would rest upon which federal appellate circuit a woman happened to reside in. Women in fairly liberal circuits would likely continue to enjoy the same rights they enjoy under existing precedents, while women in conservative circuits could see their right shrink to virtual nothingness.
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- Feb 12, 2016 · Presidential Candidates Weigh In On Scalia's Death; Cruz, Rubio, And Carson Demand Obstruction
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