Why Scalia’s Death Might Have Robbed Progressives Of An Unexpected Immigration Ally

Later this spring, the Supreme Court is expected to hear the case of President Obama’s controversial executive immigration order. Issued in 2014, Deferred Deportation for Parents of Americans (DAPA) would not only allow millions of illegal parents to stay in the country, but also obtain temporary work permits and drivers licenses. Supporters of this so-called executive amnesty are no doubt secretly relieved at the sudden death of Supreme Court Justice Antonin Scalia. The pugnacious ideologue would have ruled against them, right? Maybe. But maybe not. Scalia may have been more persuadable than they think.

As far as liberals are concerned, Scalia was a social conservative who invoked the Constitution when it advanced his right-wing agenda (such as gun rights) and discarded it when it advanced his opponents’ agenda (such as gay marriage, abortion rights, and ObamaCare). But that’s a gross caricature which ignores that, at the end of the day, Scalia believed more in judicial restraint than ideology.

Yes, Scalia issued an overwrought dissent in Arizona vs. United States, the 2012 decision that overruled much of Arizona’s notorious “your paper’s please” policy. In it, he took a bizarre swipe at President Obama’s Deferred Action for Childhood Arrivals (DACA) order, the predecessor of DAPA that was not even before the Court. “The president said at a news conference that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the Immigration Act,” Scalia railed. “Perhaps it is, though Arizona may not think so.”

Such purple condemnations would seem ominous for DAPA’s chances, yet a “no” vote from Scalia was far from certain. That’s because Scalia had strong (though somewhat inconsistent) civil libertarian tendencies that more than occasionally came to the defense of immigrants.

By Shikha Dalmia of The Week
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