How a Vacant Seat on the Supreme Court Affects Foreign Policy

By Tania F. Cohen

The unexpected death of Supreme Court Justice Antonin Scalia is leading to chaos during an already unpredictable presidential election cycle. Unsurprisingly, Republicans do not want President Obama to choose Scalia's replacement, which would shift the Court's ideological balance to the left. Prior to Scalia's death, the Court had a 5-4 Republican majority, with Justice Anthony Kennedy serving as a swing vote who sometimes voted with more liberal justices. Many Republicans have already argued that President Obama should allow the next president to fill the vacancy with the hopes that the GOP takes back the White House. This argument is not surprising, but the influence that the appointment battle and the temporary absence of a ninth justice can have on foreign policy is noteworthy.

There are two major foreign policy cases on the Court's docket this term. United States v. Texas challenges President Obama's executive orders deferring action on the deportation of select groups of undocumented immigrants. Justice Scalia's absence is unlikely to have a great impact on the outcome of this case; with his vote, the Court probably would have blocked the executive orders, so without it, a 4-4 vote would leave the lower 5th Circuit Court's ruling against the orders in place. The political stakes for this case, however, are high.

Immigration is one of the most contentious issues in this year's presidential campaign. No Republican candidate supports Obama's executive orders, though the alternatives proposed in each candidate's immigration policy platform vary. As for the Democrats, both Bernie Sanders and Hillary Clinton have said they would defend and consider expanding the executive orders. The impact that a new justice's vote would have on one of President Obama's signature policy initiatives drastically increases the pressure on him to appoint a new justice before he leaves office, and on Republicans to block the appointment.

The second foreign policy-related case on this term's docket is West Virginia v. EPA. West Virginia challenges the Clean Power Plan, which is integral to the implementation of the Paris Agreement. If the United States does not implement the Clean Power Plan, it is unable to adopt the Paris Agreement because it cannot meet its treaty obligations without the plan's strategy to reduce emissions. Last week, the Supreme Court ruled 5-4 along party lines that the Clean Power Plan cannot be implemented until federal appeals courts determine its constitutionality. Regardless of the lower court's decision, this case is likely to make its way to the Supreme Court.

As with United States v. Texas, Justice Scalia's seat would be key to the outcome. If the Senate does approve the president's eventual nominee, the Court will likely uphold the constitutionality of the Clean Power Plan and the Paris Agreement will proceed. If Republicans succeed in blocking an Obama nominee, win the White House, and successfully appoint a new justice before the case reaches the Supreme Court, the Agreement will almost certainly fail. Regardless, if a new justice has not been approved before the case reaches the Court, the fate of the Paris Agreement, and thus our international climate policy, remains unknown.

Another possible conflict the Court may need to address is the issue of Middle Eastern refugee resettlement. Following the November terror attacks in Paris, governors from more than two dozen states announced that they would not permit refugees from Syria and several other countries in the Middle East to be resettled over concerns about the vetting process. States cannot override federal policy and deny refugees entrance; the power to determine the number and type of refugees the United States will accept, as well as the location of resettlement, is granted to the president and the State Department through the Refugee Assistance Act of 1980. It would not be surprising, however, if a case addressing this issue reaches the Supreme Court. For example, although states do not have the power to override the federal government on this issue, they can refuse to fund the local organizations that facilitate the refugee resettlement process.

The issue is equally contentious among the presidential candidates. Ben Carson, Ted Cruz, John Kasich, and Donald Trump all want to block refugees from some or all Middle Eastern countries. Jeb Bush and Marco Rubio say that at minimum, they would tighten the screening procedures for potential refugees. On the other hand, both Hillary Clinton and Bernie Sanders would maintain or increase the current quotas for Syrian refugees. Should a case about refugee resettlement arise, the ideology of Justice Scalia's replacement could heavily influence the outcome.

The appointment of a new Supreme Court justice is always a partisan endeavor, particularly during an election year. In today's hyper-partisan climate, the impact of an appointment is further amplified. Members of Congress, candidates for president, and other politicians from both parties are already seizing the opportunity that the vacancy presents to shape policy. The multitude of foreign policy issues currently on the Court's docket and driving the presidential race ensures that the vacancy and the process by which it is filled will have a significant impact on many aspects of American foreign policy.

Tania Cohen is employed by the American Society of International Law and is a Campaigns Fellow at Young Professionals in Foreign Policy. Her interests include domestic civic engagement, refugee and migration policy, and the influence of history on contemporary policy development and foreign relations. Any views expressed are those of the author and not those of the American Society of International Law.