Civil and Human Rights

Justice Department seeks rehearing on president’s immigration plan

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Justice Dept. wants high court to review immigration plan

By Lomi Kriel

In an unusual move, the U.S. Department of Justice on Monday asked the Supreme Court to rehear President Barack Obama’s 2014 immigration plan that would provide temporary work permits to about 4 million immigrants here illegally.

The short-handed high court last month deadlocked 4-4 on the case, upholding a lower Texas judge’s nationwide injunction blocking the plan and sending it back to Brownsville for a full hearing.


In their petition Monday, government lawyers acknowledged it is “exceedingly rare” for justices instead to grant such a rehearing.


Justices, however, have been much more inclined to do so when a split decision occurs while a vacancy exists on the court, the petition argued. If the court agrees, it would rehear the case once a ninth justice is seated, though it is unclear when that might occur.


The court’s tie, announced in late June without an opinion, leaves millions of immigrants, mostly the parents of Americans, in legal limbo yet again. It was the high court’s fourth – and most consequential – gridlocked vote last term and highlights the fight over filling Justice Antonin Scalia’s vacancy after he died in February in West Texas.


Obama and other advocates have blamed the tie on the Republican-controlled Senate “willfully” refusing to hold hearings for about four months on his nomination of Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit.


The GOP leadership in Congress has said the electorate should have a say in naming a justice with the election this fall of a new president.


Advocates of the president’s plan praised the government’s attempt to revive it Monday, even as they acknowledged it was uncommon.


“There are extraordinarily important issues of law in play and it’s something the Supreme Court should weigh in on,” said Elizabeth Wydra, president of the Constitutional Accountability Center, a progressive think tank in Washington, D.C. “The administration is basically saying we want you to rehear this case when you do have a fully staffed court and hopefully that will be soon.”


Involve Supreme Court


The nationwide injunction makes it an issue the high court should address rather than the Brownsville federal court to which it’s been sent back, said Tom Jawetz, vice president of immigration policy at the Center for American Progress, a think in Washington, D.C.


“With nothing more to be gained from sending this case back to the trial court, we urge the Supreme Court, once fully constituted, to agree to rehear this case and do the right thing: reject this politically motivated lawsuit,” Jawetz said in a statement.


Texas Attorney General Ken Paxton, whose office brought the suit on behalf of 26 mostly Republican states, said he expected they would continue to prevail. Texas argued the president’s plan bypasses Congress in giving a quasi-legal status to immigrants and ignoring administrative procedures for changing rules.


“Because we are right on the law, we have prevailed at every stage in this case,” he said in a statement.


Sweeping plan


Obama’s plan, announced in November 2014, was poised to be the most sweeping change to the nation’s immigration laws since President Ronald Reagan legalized 2.7 million immigrants in 1986. The president said he acted after decades of indecision from Congress on what to do with the 11 million immigrants here illegally.


Given the lack of movement in the Senate to replace Scalia, it’s unclear if that will occur before the presidential election in November.


After the election, it could be a moot point. Presumptive Republican nominee Donald Trump has said he would repeal the president’s program; his Democratic counterpart Hillary Clinton said she would keep and even expand it.

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