Thoughts on the Supreme Court's "Executive Action" Non-Decision

By Dan Cadman on June 24, 2016

As was expected with the death of conservative jurist Antonin Scalia, the remaining eight justices split on the proper course of action when deciding whether to leave in place or overturn lower court decisions on the injunction holding back some of the president's executive actions on immigration. By rules of the Court, the decision leaves intact the injunction, but sends the case back to a U.S. District Court in Texas.

It is a serious understatement to say that the one-line statement announcing the split decision is itself understated — perhaps deliberately so, given that really the justices decided nothing. I had foolishly hoped that at least one of the liberal-leaning justices might have weighed in against the administration, given the stakes involved, where (in my view) the very checks and balances embedded in the Constitution are at risk.

As Mark Krikorian notes, the decision doesn't tell us who was on which side of the divide, but it takes no Carnac the Magnificent to figure out that the four progressives lined up against the three conservatives and the on-again/off-again swing vote that Justice Kennedy represents.

As I sometimes do, I found myself conducting a thought experiment as I pondered the split. Let's assume that the case works its way in the next several months back up again from the district court to the Fifth Circuit appellate court to the Supreme Court, with the decision to prohibit the government from enacting the programs intact.

November comes and wonder of wonders, the pollsters and pundits prove wrong (as they were with Brexit), and Donald Trump becomes president. Shortly after taking office, he submits his nomination for the vacant Supreme Court seat, which is filibustered by Democrats, leaving the Court at eight divided members when the "executive actions" case returns to them in pretty much the same position that it's in now. Meantime, however, Trump has put into play a whole series of his own executive actions on immigration, of a much different nature than those of this administration.

Would our four progressives on the Court, including Obama appointees Kagan and Sotomayor, still feel adamant about defending the expansive prerogatives of presidential power where immigration is concerned, or would they suddenly develop a crisis of constitutional conscience? I'd lay money on the answer.