The U.S. Department of Justice on Monday asked the U.S. Supreme Court for a rehearing before nine justices in the case over President Barack Obama’s controversial executive actions on immigration, highlighting the need for a definitive decision on the matter instead of the nonprecedential 4-4 split reached by the high court in June.
In a surprising move, the DOJ lodged a rehearing petition with the high court in the closely watched immigration case, roughly a month after justices tied in the dispute,thereby affirming a ruling that had upheld a block against the immigration policies.
“This filing is consistent with historical practice and reflects the need for prompt and definitive resolution of this important case,” DOJ spokesperson Melanie Newman said in a statement.
Obama’s blocked initiatives would expand the Deferred Action for Childhood Arrivals program for immigrants who entered the U.S. as children and would create a similar program for certain immigrant parents, known as Deferred Action for Parents of Americans and Lawful Permanent Residents.
Under the programs, which could affect an estimated 4.4 million people, immigrants would be able to defer deportation and apply for work permits for three-year periods.
Obama first unveiled the immigration policies in late 2014. However, Texas and 25 other states sued over the initiatives, and a federal judge blocked the policies last February. The Fifth Circuit later affirmed the block, finding the states had shown a “substantial likelihood” of winning on their administrative law claims.
In its rehearing petition, the DOJ emphasized the need for a precedential decision in the case. Although a 4-4 vote kept in place the Fifth Circuit’s decision to uphold a block on the initiatives, it doesn’t carry any precedential weight.
“Unless the Court resolves this case in a precedential manner, a matter of ‘great national importance’ involving an ‘unprecedented and momentous’ injunction barring implementation of the Guidance will have been effectively resolved for the country as a whole by a court of appeals that has divided twice, with two judges voting for petitioners and two for respondent States,” the DOJ said.
The agency further argued that the high court should grant rehearing to allow for a ruling by the Supreme Court when it “has a full complement of members,” instead of allowing a “nonprecedential affirmance by an equally divided Court to leave in place a nationwide injunction of such significance.”
The court is currently down a member due to the death of Justice Antonin Scalia, and Senate Republicans — under Majority Leader Mitch McConnell, R-Ky., and Judiciary Committee Chairman Chuck Grassley, R-Iowa — have so far held fast against holding hearings or a confirmation vote to replace him. Obama recently took to the editorial pages of the Wall Street Journal to again push for congressional consideration of nominee Merrick Garland to the U.S. Supreme Court.
Given the standoff in Congress, it’s unclear when the Supreme Court will again be fully staffed. It’s possible that the stalemate may not crack until after the presidential election this November.
“Because we are right on the law, we have prevailed at every stage in this case and we are confident that we will continue to prevail,” said Marc Rylander, the communications director for the Texas Attorney General’s Office, in a statement.
The government is represented by Acting Solicitor General Ian Heath Gershengorn.
The 26 states are represented by Scott A. Keller, J. Campbell Barker, April L. Farris, and Matthew Hamilton Frederick of the Office of the Attorney General of Texas.
The case is U.S. et al. v. State of Texas et al., 15-674, in the Supreme Court of the United States.
–Additional reporting by Bryan Koenig. Editing by Patricia K. Cole. Source Law360