Immigration Law

LexisNexis Expert Yale-Loehr: Scalia's Absence May Not Affect Immigration Case

Laura D. Francis, Bloomberg BNA, Feb. 17, 2016- "Stephen Yale-Loehr of Miller Mayer in Ithaca, N.Y., said the case might have split 5-4 in favor of the states if Scalia remained on the court, which would result in a 4-4 tie without him.  A tie vote means there is no Supreme Court precedent, and the lower court's decision stands. ... Justice Anthony Kennedy, often seen as the Supreme Court's “swing vote,” also is expected to assume that role in the immigration case.  Kennedy “has been a swing vote in some immigration cases before,” according to Yale-Loehr, who is also a professor of immigration law practice at Cornell University Law School. “Kennedy could be a key.” ... Yale-Loehr told Bloomberg BNA that the court's request that the parties submit briefs addressing the take care clause of the U.S. Constitution isn't necessarily an indication that they're planning on ruling on the merits. “Certainly they'd have to get past the standing issue to get to the merits,” he said. ... Yale-Loehr said there are three possible outcomes on the standing issue: a majority decision that the states don't have standing; a majority decision that the states do have standing; and a 4-4 tie, leaving the Fifth Circuit's decision—that the states do have standing—in place. The latter two outcomes would require the court to address the merits, he said. ... Even if the justices rule in favor of the administration on the INA and constitutional issues, a decision that the programs require notice-and-comment rulemaking under the APA is a loss for the president, Yale-Loehr said.  He told Bloomberg BNA that the administration wouldn't have time to go through the process before Obama leaves office in January.  Yale-Loehr said it is possible that the justices could issue a narrow opinion focusing solely on the preliminary injunction, without getting into the merits. A majority decision that notice-and-comment rulemaking wasn't necessary—without addressing the other issues—would mean the programs could be implemented while the merits are debated in the lower courts."