Civil and Human Rights

Obama administration asks 9-member SCOTUS to rehear immigration lawsuit

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By Aaron Nelsen

The Justice Department on Monday filed a petition asking that the full nine-member U.S. Supreme Court rehear the blockbuster lawsuit against President Barack Obama’s plan on immigration.


Last month, the high court deadlocked in a 4-4 tie, leaving in place an appeals court ruling that blocked the president’s policy on immigration that would grant more than 4 million immigrants deportation reprieves and allow them to work in the country.


Justice Antonin Scalia’s death earlier this year left the court with only eight justices.


Though it is rare for the Supreme Court to grant a rehearing, Acting Solicitor General Ian Gershengorn argued that because the same thorny issues in the immigration case could arise again there is “a strong need for definitive resolution” by the high court.


“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,” Gershengorn wrote.


In November 2014, Obama announced the Deferred Action for Parents of Americans and Lawful Permanent Residents program to shield millions of undocumented adults from deportation. Also under Obama’s initiative, an existing Deferred Action for Childhood Arrivals program, or DACA, which was implemented in 2012, would be expanded.


The Texas-led challenge, joined by 25 other states, asserts that Obama overstepped his authority in launching the deferred action for parents program and in expanding the children’s program. Texas has argued the program would force the state to spend millions on schools, health care and law enforcement.


U.S. District Judge Andrew Hanen ruled in February 2015 that the administration had violated the Administrative Procedure Act by circumventing public hearings in the federal rule-making process when it announced its immigration policy. The decision was upheld by the 5th U.S. Circuit Court of Appeals last in November, which suggested that Obama had also exceeded his authority by granting benefits to immigrants.


“If the court doesn’t designate for rehearing, when there’s nine justices there will be new constraints placed on the executive, and an important national program blocked without the Supreme Court weighing in and declaring what the law is,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center.

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