Civil and Human Rights

Administration asks Supreme Court to rehear immigration case

By Lydia Wheeler

The Justice Department is asking the Supreme Court to rehear a case challenging President Obama’s executive actions on immigration.


The court was deadlocked 4-4 in its decision in June, leaving a lower court order standing that blocks a program allowing undocumented immigrants who are parents of U.S. citizens or lawful permanent residents to remain in the United States for three years and apply for work permits.


The decision also prevents the administration from otherwise expanding the Deferred Action for Childhood Arrivals (DACA) program issued by Obama in 2012.

The case, U.S. v. Texas, is the most prominent to end in a tie since the unexpected passing of Justice Antonin Scalia in February. His death has left the court divided with an equal number of justices on the conservative and liberal wings; the Senate is refusing to consider Obama’s nominee, Merrick Garland.


The Justice Department said the lower court’s preliminary injunction would now prevent the government from carrying out the programs nationwide. It urged the Supreme Court to revisit the case when it had a full bench of nine justices.


“There is no reason to expect that the district court would issue a permanent injunction that is narrower; and no other pending case challenges the Guidance,” the agency said in it’s petition.


“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 argued that there have been cases in the past where the justices revisited a case that had deadlocked because of a vacancy.


The appeal comes with the president and Republicans at loggerheads over confirming a ninth justice.


Democrats and Obama have used the deadlocked rulings to urge the Senate to confirm a new justice to replace Scalia. But Senate Republicans have said they will not move on Obama’s nominee this year. 


“Because we have a short-staffed Court unable to issue a decision on the DAPA program, a regional lower court has been able to put unprecedented constraints on the executive and stop a federal policy nationwide, affecting millions of American families,” Elizabeth Wydra, president of the Constitutional Accountability Center, said in a statement.


“This petition highlights why the Senate leadership needs to stop its hyper-partisan gamesmanship and consider the President’s Supreme Court nominee, so the Court can fulfill its constitutional role of declaring what the law is.”

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