The Justice Department asked the Supreme Court on Monday to rehear the controversial case concerning the Obama administration’s executive actions on immigration that split the justices 4-4 last spring once the court has nine members again.
Because the justices were evenly divided in the case, they issued a one-sentence ruling on June 23, without comment or dissent, upholding the lower court opinion that blocked the programs from going forward.
President Barack Obama’s actions were meant to help more than 4 million undocumented immigrants to come out of the shadows and apply for programs that could lead to work authorization and associated benefits.
The opinion was a loss for the Obama administration and millions of undocumented workers who hoped to apply for the programs, but it set no new national precedent. It was a victory for Texas and 25 other states who challenged the programs arguing they represented an unauthorized abuse of presidential power.
The DOJ will have an uphill climb convincing the justices to rehear the case next term, as it would take the vote of five justices to do so.
In one of his first filings as acting-solicitor general, Ian Heath Gershengorn agreed in court papers that it is “exceedingly rare” for the court to grant rehearing.
But, he wrote, there is a “strong need for definitive resolution by this court at this stage.”
He noted that the preliminary injunction put in place by the lower court had the effect of blocking the programs across the country, and it is doubtful that the judge – who will now take up the case again – will change his mind.
“This court therefore should grant rehearing to provide for a decision by the court when it has a full complement of members, rather than allow a nonprecedential affirmance by an equally divided court to leave in place a nationwide injunction of such significance,” Gershengorn wrote.
The justices already refused to hear two similar petitions in other 4-4 cases, and progressives have said the ruling should prompt the Senate to vote to confirm a ninth justice.
After the Supreme Court’s ruling in June, presumptive Republican presidential nominee Donald Trump tweeted that the court has “kept us safe from exec amnesty – for now,” while Hillary Clinton said it was “heartbreaking” and could “tear apart families.”