Executive Branch Asks Supreme Court to Rehear US Versus Texas

On Monday, July 18, Attorneys for the Department of Justice filed a petition with the Supreme Court requesting that the Court re-hear U.S. v. Texas once a ninth justice has been appointed to the court.

Because of the death of Justice Antonin Scalia in February, the justices deadlocked 4-4 in their opinion on the case last month. As a result, the 5th circuit court’s preliminary injunction restraining the executive branch from proceeding with DAPA and the expansion of DACA was left standing.

The Supreme Court deadlocked in four cases this last term, including this immigration case. Petitions for rehearing were filed by the losing side in two of those cases – Friedrichs v. California Teachers Association (which challenged fees charged to public employees who do not join the union that represents them) and Hawkins v. Community Bank (which interpreted a federal law banning discrimination in credit transactions) of Raymore. The Court denied both requests for rehearing before leaving for their summer recess.

The DOJ attorneys claimed in their petition that it is more important for U.S. v. Texas to be re-heard before a full court than either the Friedrichs or the Hawkins case, because the question of the validity of Obama’s guidance on immigration is “unlikely to arise in any future case.”

“Ordinarily, it is exceedingly rare for this Court to grant rehearing,” The DOJ attorneys stated in their petition. “But when this 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 is right; the Court really has granted rehearing before a full Bench after a deadlock due to a vacancy before several times. After the death of Justice Benjamin Cardozo, the Supreme Court granted rehearing of the 1938 case of US v. One 1936 Model Ford V-8 De Luxe Coach. Two cases were granted re-hearing after Justice Robert Jackson’s death caused a vacancy in 1954.  In other vacancy cases, four cases were granted re-hearing in 1941 due to Justice Clark McReynolds’ retirement, two cases were granted re-hearing in 1945 after Justice Robert Jackson took a leave of absence, and one case was granted re-hearing due to a justice’s absence due to illness in 1895.

However, all the cases cited in the petition took place over 60 years ago. This may be because it’s much more common these days for justices to retire before their deaths. As the Washington Post noted back in February, Justice Scalia was only the third Supreme Court Justice to die while “on the bench” in the last 63 years. Chief Justice William Rehnquist died on the bench in 2005, but prior to that, the last justice to die while on the bench was Chief Justice Fred Vinson, who died in 1953. As a result, the executive and legislative branches of the federal government usually anticipate a Supreme Court vacancy before it happens and have time to decide what to do about it. Justice Scalia’s death took everyone by surprise.

“Unless the Court resolves this court 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. As this Court recognized in granting certiorari, this Court instead should be the final arbiter of these matters through a definitive ruling.”

All eight Justices will discuss the government’s filing and determine what to do about it. The Court could deny the request outright, as was done in the previous two deadlocked cases requesting re-hearing this term, or the Court could ask Texas and the other states who joined the challenge to the guidance to weigh in on the re-hearing petition. However, the Court’s previous denial of the other two petitions for re-hearing this term on a deadlocked case strongly forecast that this petition is unlikely to succeed. If the Senate continues to block hearings of the President’s Supreme Court nominee, there may be many, many months to go before a ninth Justice joins the Court.

To find out how any recent controversies in immigration law may affect you and your immigration process, contact a trusted immigration lawyer at Maximilian Law Inc.