Obama administration asks Court to rehear immigration case
Twenty-five days ago, the eight Justices of the Supreme Court issued a one-sentence order which indicated that they were deadlocked four to four on the validity of the Obama administration’s deferred-action policy, which would allow undocumented immigrants who are the parents of U.S. citizens and lawful permanent residents to apply to remain in the country without fear of deportation and work here legally. Because two lower courts had blocked the administration from implementing the policy before it could go into effect, it looked like the ruling could be the end of the administration’s immediate attempt to revive the policy prior to the end of all the litigation. But today the Obama administration asked the Court to grant rehearing to review the case again (which would require the votes of five Justices), when it has all nine Justices – even if it isn’t clear when that will be.
The filing by Acting Solicitor General Ian Gershengorn acknowledged that it is “exceedingly rare” for the Court to agree to rehear a case. But, the Obama administration emphasized, the Court did precisely that in several cases dating back to the first part of the twentieth century, when a vacancy on the Court resulted in an equally divided Court and an order affirming the decision below. In some of those scenarios, the administration noted, the Court did not hear rearguments for six to eight months after it agreed to rehear the cases. And in fact, the administration told the Court, in several cases in the late nineteenth century, “several years elapsed between the grant of rehearing and reargument.”
During the Term that just ended, the Court deadlocked in four cases in the wake of the death of Justice Antonin Scalia, including the immigration case that the government is now asking the Justices to rehear. In two of those cases – a high-profile challenge to the fees charged to public employees who decline to join the union that represents them and a case involving the interpretation of a federal law prohibiting discrimination in credit transactions – the losing party made essentially the same request as pressed today by the Obama administration, asking the Court to review the case again. Before leaving for their summer recess, the Justices turned down both requests, without ever asking the other side to weigh in.
In today’s filing, the federal government argues that the “need for rehearing is more pressing” than in either of the other cases in which the Court denied rehearing, because – unlike in those cases – the question of the policy’s validity is “unlikely to arise in any future case.” And, it adds, although the lower courts had only issued a temporary order blocking the implementation of the policy, leaving for later a full-scale review, it is important for the Court to step in to resolve the issue now. This is particularly true, the government continues, because the appeals court’s legal conclusions at the preliminary stage “leave little or no room for a different outcome” when the case returns to the lower courts.
The government’s filing will go to all eight Justices, who could deny the request outright or ask Texas (along with the other states who joined its challenge) to weigh in. Either way, the Court’s denial of the two other petitions for rehearing suggests that this filing seems to be a longshot: with no real prospect of a ninth Justice joining the Court for several months and at least the possibility that the case could come back to the Court after a final judgment, the Justices may opt to steer clear for now.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the American Federation of Teachers and American Association of University Professors in support of the respondents in Friedrichs v. California Teachers Association, the union fees case. However, I am not affiliated with the firm.]