With the Passing of Supreme Court Justice Antonin Scalia, What will Become of President Obama’s Executive Actions in the Case of United States vs. Texas, now Pending Before the Supreme Court?
By: Robert Gard
Over the past year or so, I’ve been following and writing about the political and legal maneuvering surrounding the two key pieces (expanded “DACA” without age limits and “DAPA”) of President Obama’s Executive Actions Program, announced on November 20, 2014, which were scheduled to go into effect on February 18th and May 26th of 2015, respectively; but legal and political hurdles to implementation remain. After losses in the U.S. District Court and in the 5th Circuit Court of Appeals, the Obama Administration has appealed the adverse decisions to the U.S. Supreme Court, and the U.S. Supreme Court has agreed to hear the case, with oral arguments likely to take place later this spring. Last month, I discussed the four central issues that the Justices asked to be addressed in briefs and oral arguments. The passing away of Justice Antonin Scalia on February 13, 2016, has already become the subject of intense discussions on Sunday talk shows and newspapers on how it will affect the path of the Supreme Court. Justice Scalia, a solid “social conservative” and constitutional “originalist”, was assumed by many to be a vote in opposition to the Obama Administration’s executive actions on DAPA and expanded DACA, but I think that Justice Scalia was a much more complicated jurist with strong civil libertarian tendencies and a history of applying a doctrine of “categorical analysis” in some cases involving immigrants, leading to a few rulings in favor of immigrants.
In support of the proposition that Justice Scalia would have ruled against the President are the Justice’s critical comments in the 2012 case of Arizona v. U.S., as well as his gratuitous swipe at the President’s original DACA program, which was not even before the Supreme Court in that Arizona case.
This particular speculation can be laid to rest, and is replaced by different questions as to how the Supreme Court will function with only 8 Justices, and how this may effect pending cases. With 8 Justices now left on the court, Justice Scalia’s absence means there will be a real possibility of 4 – 4 ties. In cases where the court divides evenly, the decision of the lower court stands (the Obama Administration lost in the 5th Circuit Court of Appeals) and no national precedent is set. A 4-4 tie here would leave that lower court opinion in place, effectively preventing the president’s executive action from going into effect, at least in the short term. While the justices could attempt to avoid ties through forging compromise to find five votes on narrow rulings, or schedule some cases for re-argument next year, it is still possible that some of the most high-profile cases before the court could result in 4-4 ties. At this point, most analysts foresee a 5 – 3 vote to overturn the defeat at the 5th Circuit, but a 4 – 4 split (where the 5th Circuit denial would stand undisturbed) is certainly possible. Mitch McConnell, the Republican Senate Majority Leader, and Senator Charles Grassley, Republican Chair of the Judiciary Committee have already gone on record as refusing to even interview or consider ANY nominee selected by President Obama to replace Justice Scalia, insisting that they won’t even conduct hearings, much less a vote on any nominee until the next President takes office.
Former AILA President, David Leopold, has stated, “Since Scalia’s passing the media has been ripe with speculation that the eight justice Supreme Court will divide equally along ideological lines and deadlock 4-4 with Justices Ginsburg, Breyer, Sotomayor and Kagan voting to uphold the President’s executive actions and Justices Roberts, Kennedy, Alito and Thomas voting to strike them down. A tie vote would not set a national precedent but would return the case to Hanen’s court. No doubt cases would be brought by advocates – and even states – to end the injunction in other states that welcome the president’s deportation deferrals. That’s the kind of judicial chaos that Roberts seems to want to avoid. Fortunately, all this is rank speculation. It’s impossible to know what the Supreme Court— or any individual justice—will do in any case. The more important question is whether the justices will take the opportunity to demonstrate to the nation that they will not allow the judiciary to be used as a forum for partisan political attacks. If they do, there is no doubt that a healthy majority of the court will vote to dismiss the lawsuit, lift the injunction and make clear to the nation that political disputes are to be decided at the ballot box, not in the Supreme Court of the United States.”
Since early January, the Immigration and Customs Enforcement (ICE) agency has been conducting a series of deportation raids to apprehend undocumented immigrant women and children (who are already under removal orders) and send them back to their home countries. The raids have left undocumented aliens across the country afraid to leave their homes, sometimes forgoing doctor’s appointments and skipping classes at school. Here are just a few dubious ways in which ICE agents have tried to apprehend immigrants in recent weeks:
1. Pretending to look for a wanted person.
ICE agents intercepted Rene — who requested for his last name to be withheld — in early January at his home. They said that they were looking for a wanted man and needed to take a look in his house to see if anyone there matched their photo. Agents then entered his home to take his sister, a recent Central American border crosser, and two of her children. They were detained and flown to a family detention center in Texas.
2. Pretending to look for a woman’s partner, then arresting her in front of her children.
According to Al Punto, a Spanish-language news program, immigration agents stopped a womanand said they were looking for her partner, who may have been involved in trafficking undocumented immigrants. But they ended up reaching into her car and dragging her out of the driver’s seat as her children screamed and cried in the backseat.
One of her children recorded footage of the exchange. In the last scene, the woman was seen being held to the ground, handcuffed by two officials. Two of her three underage children were also handcuffed, then later released to their grandmother.
3. Luring an immigrant out of a church using fake text messages.
According to Chicago radio station WBEZ, Reynold Garcia, an undocumented Mexican immigrant, entered the Christian Pentecostal Center in Schaumburg, Illinois one morning in early January. He and several others had gathered at the house of worship to pray for comfort, as agents from Immigration and Customs Enforcement (ICE) had raided Garcia’s house the day before while he was away, taking his wife and two children with them. “He told us, ‘you know, if something happens to me, we’ll keep in touch by cells,’” said Haggar Gutierrez, Garcia’s friend and one of several parishioners of the largely Hispanic congregation who were present that morning.
But as the congregants assembled, Garcia’s phone began receiving chilling text messages that appeared to be from his cousin, Noel. The texts said he had been involved in a car accident, and that he needed Garcia’s help. I go, ‘No, no no… this is not police. This is ICE.’ But it was too late, because he was already inside the car. Garcia, 31, reportedly told other worshippers he felt “something was not right” about the texts, but received a phone call from an officer confirming the accident and saying they would come to the church and escort him to the police station. As Garcia exited the church, he was waved over to a nearby McDonald’s parking lot by people who appeared to be local police. Other congregants asked if they could go with him, but men wearing vests with “Police” scrawled across the chest told them to stay at the church.
But as the Garcia entered their unmarked cars, witnesses say they realized the men were not local police, but ICE agents: Garcia was being apprehended. “The very last moment, you know, is when we realized what was happening,” Gutierrez told WBEZ.
The following morning, Garcia — who has been deported once before — was already in a Texas detention center, along with his wife and children.
4. Arresting children off school property. Nineteen-year-old Wildin David Guillén-Acosta was arrested in front of his North Carolina home as he was leaving for class in late January. In response, the Durham Public Schools Board of Education passed a resolution asking ICE to stop detaining students. “We’ve had a very large drop in attendance,” Ellen Holmes, a Spanish and ESL teacher, said in the press release. “Students are no longer coming to school because they no longer feel it’s safe.” Kimberly Chavez Pineda, 18, was also pulled over by a car with flashing lights on her way to school with a friend in Georgia, according to a Southern Poverty Law Center (SPLC) press release. Chavez Pineda was taken into custody and is now awaiting court proceedings at the Irwin County Detention Center in Ocilla, Georgia, facing deportation despite her pending asylum petition.
Quick Notes:
The U.S. is Running out of Nurses
The February 2016 issue of Atlantic Magazine has an article detailing the current US nursing shortage in which it highlights that 1.2 million nursing positions will be unfilled in the next five years. While nursing shortages have existed in the US for most of the last forty years, this one is going to be different. The US nurse supply has been artificially inflated since the start of the recession. The aging U.S. population and chronic disease are creating the perfect storm driving demand for nurses. America’s 3 million nurses make up the largest segment of the health-care workforce in the U.S., and nursing is currently one of the fastest-growing occupations in the country. Despite that growth, demand is outpacing supply. According to the Bureau of Labor Statistics, 1.2 million vacancies will emerge for registered nurses between 2014 and 2022. By 2025, the shortfall is expected to be “more than twice as large as any nurse shortage experienced since the introduction of Medicare and Medicaid in the mid-1960s,” a team of Vanderbilt University nursing researchers wrote in a 2009 paper on the issue.
The reasons for the current US nursing shortage are many:
Baby Boom Generation Demand. The US Baby Boom generation, those born 1946-1964, has reached an age where they will increasingly demand nursing services. As The Atlantic article points out:
Today, there are more Americans over the age of 65 than at any other time in U.S. history. Between 2010 and 2030, the population of senior citizens will increase by 75 percent to 69 million, meaning one in five Americans will be a senior citizen; in 2050, an estimated 88.5 million people in the U.S. will be aged 65 and older.
Aging Nursing Workforce. Out of the 3 million US nurses, one million are over age 50 and will be expected to retire in the next 10-15 years. Many nurses held off retiring during the 2008 – 2015 downturn in the economy, but now those deferred retirements are accelerating. The growing number of new nursing graduates (nearly 155,000 entered the workforce in 2015) is not enough to keep up with demand, and U.S. nursing schools had to turn away nearly 80,000 qualified student applicants last year due to insufficient nursing faculty levels.
Few Nurse Educators. Nursing Ph.D. programs have been unable to attract nursing faculty. These nurses Ph.D.s have traditionally made up large numbers of nursing school faculty. Part of the reason for this is that a Bachelor (BSN) nursing graduate is usually offered a job at graduation, thus reducing that graduate’s incentive to seek out graduate nursing education. Additionally, a nurse with a BSN can earn almost as much, if not more in the field than a nurse with a Ph.D. can earn as a faculty member. Without a dramatic increase in nurse faculty, it will be impossible for the US to supply enough nurses to meet the demand.
Distribution Challenges. Some of the American nursing problem stems from the lack of mobility in the nursing force. ##
