The Obama administration on Monday asked the Supreme Court to reopen the government’s case defending its broad new immigration policy, but to act on the request only after a ninth Justice has joined the Court.
In a brief filing, the administration said the Justices’ four-to-four ruling on June 23 should not be the last word, arguing that “there is a strong need for definitive resolution by this Court at this stage.”
The evenly divided Court left intact a nationwide order by a federal trial judge in Texas, blocking enforcement of the deferred deportation policy announced in 2014, but never yet in effect. The practical result was to send the case back to the trial judge, to conduct a full trial on the challenge by 26 states to the policy. No definite trial date has yet been set.
Conceding that the Court rarely grants rehearing, the new plea argued that when the Court has gone through the process of a full-scale review and then divided evenly only because of a vacancy on the bench, rehearing before a full bench has been granted “not infrequently.”
And, in situations like that, the document added, the Court “has not infrequently held the case over the Court’s summer recess, holding oral arguments months later.’
Noting that the Court in its just-ended Term had declined to rehear two other cases where it had split four-to-four, the new rehearing petition said the issues at stake in those cases were likely to return to the Court in future cases.
By contrast, it said, the validity of the deferred deportation policy “is unlikely to arise in any future case.” The Texas judge’s order is nationwide in scope, and there is no reason to expect the judge to narrow that order, it added. Moreover, there is no other pending case that challenges the policy.
If the Court does not reopen the case at this point, the filing went on, the nationwide ban on enforcement “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 [the government] and two for the states.” By granting review of this case in January, the filing added, the Court definitely signaled that it should be “the final arbiter of these matters through a definitive ruling.”
It will take the votes of a majority of the Court to grant rehearing of the case. But that requirement is made more complex because the Justices had divided four-to-four. Which Justice on which side would be willing to shift a vote to make a majority to grant rehearing?
There is, at this point, no predictable point at which the Supreme Court will have a full bench of nine Justices. The Republicnn leaders of the Senate have held up the nomination of Circuit Judge Merrick B. Garland for a seat on the Court until after this November’s federal elections.
If the Court were to grant rehearing in response to the government’s new plea, it could jsut sit on the case until a ninth Justice joins the Court, probably sometime fairly early in the new year.
As of now, the trial judge in the case, District Judge Andrew S. Hanen of Brownsville, is scheduled to meet with lawyers from both sides on August 22, and may decide at that time on what the next steps would be in lower courts.