July 19th, 2016 | Pamela Wolf

The Obama Administration has filed a petition asking the Supreme Court to grant rehearing of a case that would have put the president’s immigration reform policy to the test had there been a full panel of nine Justices. In U.S. v. Texas, the administration turned to the High Court after the Fifth Circuit upheld a district court injunction that stands in the way of an executive enforcement guidance to implement the Department of Homeland Security’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.

However, lacking a ninth Justice who might have spurred a different outcome, the ruling was a 4-4 tie that left the Fifth Circuit decision and the nationwide injunction intact.

In the wake of the unexpected death of Justice Scalia, President Obama nominated Merrick Garland to fill the vacancy on March 16, but Republican senators have said they will not permit a vote on the nomination until after the November election. It has now been 125 days since Garland’s nomination; reportedly, every other Supreme Court nomination in history has received a vote in the Senate within that time. The immigration ruling underscores some of the fallout from the deadlock.

Immigration reforms. The challenged guidance was directed to the DAPA program, which would have allowed DHS to halt deportation proceedings and issue work permits and other benefits to a specific class of undocumented immigrants. The program sought to implement immigration reform measures proposed by Obama in November 2014 after immigration reform had stalled in Congress. The preliminary injunction also blocked a proposed expansion of a similar program, Deferred Action for Childhood Arrivals (DACA), initially implemented in 2012.

In the Supreme Court, the federal government argued that the states that challenged the guidance were not objects of the policy; therefore, the Fifth Circuit’s ruling on the injunction barring implementation of the guidance was contrary to Article III of the U.S. Constitution. Moreover, by refusing to remove the injunction, the appeals court also got it wrong as to the often-asserted discretion in providing deferred action for certain aliens already living in the United States, according to the government.

Reasons for rehearing. The petition for rehearing acknowledges that “it is exceedingly rare for [the] Court to grant rehearing.” However, the government asserts that when the Court “has conducted plenary review and then affirmed by vote of an equally divided court because of a vacancy rather than a disqualification, the Court has not infrequently granted rehearing before a full Bench.” The petition cites examples of instances in which there was an equally divided court and a rehearing was granted because it appeared that a majority on one side or the other might be mustered. The petition asserts that, “In such situations, the Court has not infrequently held the case over the Court’s summer recess, holding oral arguments months later.”

The government also argues that this case is different than Friedrichs v. California Teachers Ass’n and Hawkins v. Community Bank of Raymore, both of which were 4-4 rulings that resulted this term due to the vacancy on the Court. While the issues presented in those cases may “freely recur” in other cases, the guidance at issue here is “unlikely to arise in any future case,” the petition states. The government also points out that the preliminary injunction in this case bars implementation of the guidance anywhere nationwide, that there is no reason to expect that the district court will issue a permanent injunction that is any narrower, and that there is no other pending case challenging the immigration guidance.

Definitive ruling needed. The petition also presses for a definitive ruling. “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 petition urges. “As this Court recognized in granting certiorari, this Court instead should be the final arbiter of these matters through a definitive ruling.”

The National Immigration Law Center quickly issued a statement supporting the administration’s bid for rehearing: “The Supreme Court failed millions of immigrant families, and our country as a whole, when it deadlocked in U.S. v. Texas. Now, the justices have an opportunity to right this wrong and fulfill their duty to the American people.

“U.S. v. Texas is without a doubt one of the most consequential immigration cases in recent history. It is appropriate and, in fact, necessary for the Court to rehear the case with a full bench and deliver a decisive ruling. We commend the Justice Department for taking a necessary first step toward ensuring that those whose lives are hanging in the balance get a fair day in court. We hope the Supreme Court will recognize that the millions of families living in limbo—and our country as a whole—deserve better than a non-decision. We beseech the justices to grant a rehearing.”