The Supreme Court on Friday issued its final round of regular summer orders, and the list indicated that the Justices had taken no action on the Obama administration’s plea to schedule a new hearing on the legality of the broad new immigration policy. Presumably, that plea will be taken up later, but maybe not until late September.
The Court split 4-to-4 on June 23, thus upholding without comment lower court rulings that blocked nationwide any enforcement of the November 2014 policy of deferring deportation of upwards of four million undocumented immigrants.
It would have taken the votes of five of the eight Justices to grant rehearing, under the Court’s rules. It may be that, because the Court is in its summer recess, the Justices simply wanted more opportunity to discuss the government request to grant rehearing. It is also possible that the Court has voted to deny rehearing, but one or more Justices is taking time to write a dissent.
The Justices’ next scheduled meeting with each other is a closed-door conference on September 26, when the Court will consider what to do with hundreds of new cases that have built up on its docket over the summer. If the Court does not act before that gathering, the rehearing petition could be considered at that time.
In the meantime, the Court could ask for a response to the rehearing requested from the 26 states that sued and won the court orders against enforcement of the policy. The Court’s normal practice is not to grant rehearing without asking for a response from the other side in a case.
Ordinarily, the Court very seldom grants rehearing of a case it had previously decided. The rules make it difficult to get such a new look, and the Court is almost never persuaded that there is a valid reason for such a reexamination.
In the current situation, however, the fact that the Court could not issued its own full-scale ruling on the policy’s legality because it lacks one of its member and the others divided evenly may have been enough of a difference to explain that lack of action on Friday.
Moreover, the federal government does not often ask the Court for a rehearing, and the Court out of respect for another branch of the national government may have chosen to ponder this request a little more before acting on it. The Court previously turned down a request by private parties to rehear a major case on assessing labor union on public employees who do not belong to the union.
As a practical reality, the government of President Obama is running out of time to put the policy into effect, even if the Court were to hold a new hearing on it. The President’s term ends at noon on January 20, and after that, the fate of the policy will be in the hands of the new president who gets elected on November 8.
The government had asked the Court to grant rehearing this summer, but not to actually move forward on that until after a ninth Justice is on the bench. There now seems almost no prospect that the seat of the late Justice Antonin Scalia will have a new occupant any time before election day, and maybe not until some time in the early months of 2017.
Meanwhile, a young undocumented immigrant who has lived in the U.S. since arriving as a seven-year-old child 18 years ago has filed a lawsuit in federal court in New York, challenging the nationwide scope of the order that blocked enforcement of the Obama policy.
Martin Jonathan Batilla-Vidal had benefitted from the new policy, by gaining a third year of eligibility for a work permit in place of the two years he had received under an earlier version of the deferred deportation program. That added year, however, was revoked by federal officials last year, relying on the nationwide aspect of the non-enforcement order issued by U.S. District Judge Andrew S. Hanen of Brownsville, Texas.
The new lawsuit contended that Judge Hanen did not have the authority to expand his order all across the country, because that was broader than necessary to cure any harm done to the 26 states that sued, and because he had not yet made a final decision on the legality of the 2014 version of the program. That is the version that had benefitted Batilla-Vidal.
His lawsuit asked that a federal judge in Brooklyn, New York, rule that the injunction did not apply to those living in New York, strike down the withdrawal of his third year of work authorization, reinstate that year, and bar government officials from revoking it again.
He contended that he had to file a lawsuit, because there is no administrative mechanism for him to make his challenge.