Push for Immigration-Law Rehearing After Deadlock

     (CN) — Since a 4-4 deadlock put an anticlimactic end to President Barack Obama’s offer of deportation relief to certain undocumented immigrants, the U.S. government filed Monday for a rehearing when the Supreme Court gets a ninth judge.
     The filing comes nearly a month after the Supreme Court issued just one sentence on June 23 that put an end to one of the most closely watched cases in the nation.
     One vote short since the death of Justice Antonin Scalia in February, the partisan split by the Supreme Court failed to topple a lower court’s injunction against Obama’s Deferred Action for Parents of Americans, dashing the hopes of an estimated 4 million paperless immigrants who qualified for the program.
     Though Obama nominated a replacement for Scalia back in March, Republicans have made good on their vow to deny Judge Merrick Garland a Senate confirmation hearing, hamstringing the Supreme Court for several important cases in the last term. Republicans contend that Obama’s successor should appoint Scalia’s replacement since a presidential election year unfairly politicizes the process.
     The move is unprecedented and has left Obama’s signature immigration policy hanging in the balance.
     Texas is at the head of the 26 Republican-led states challenging DAPA. They say Obama pushed the policy through in violation of the Administrative Procedure Act’s notice-and-comment procedures.
     To demonstrate standing, the states note that they are the ones that will bear the cost of issuing driver’s licenses to DAPA recipients.
     After a federal judge in Texas enjoined the program, the Fifth Circuit left that injunction intact twice last year.
     Both of the federal appeals court’s rulings were divided, with Republican-appointed Judges Jerry E. Smith and Jennifer Walker Elrod in the majority.
     In his May 2015 dissent, Judge Stephen Higginson saw DAPA as a nonjusticiable issue because it treads on the authority of the Department of Homeland Security.
     “Congress could, but has not, removed discretion from DHS as to which undocumented immigrants to apprehend and remove first,” Higginson wrote, citing Fifth Circuit and U.S. Supreme Court case law that establishes a president’s right not to deport immigrants for humanitarian reasons.
     Higginson, an Obama appointee, did not participate in the Fifth Circuit’s next ruling on DAPA, but a fellow Democratic-tapped judge echoed his remarks.
     Judge Carolyn King, who was appointed by President Jimmy Carter, wrote in November that she would dismiss this case as nonjusticiable “because federal courts should not inject themselves into such matters of prosecutorial discretion.
     The White House seized on the Fifth Circuit’s nonconsensus in its petition Monday for a Supreme Court rehearing.
     “Unless the Court resolves this case 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,” acting U.S. Solicitor General Ian Gershengorn wrote in the 8-page petition.
     “As this court recognized in granting certiorari, this court instead should be the final arbiter of these matters through a definitive ruling,” Gershengorn added.
     Gershengorn conceded “it is exceedingly rare” for the high court to grant a rehearing, but he cited the 1938 case United States v. One 1936 Model Ford V-8 De Luxe Coach, in which the Supreme Court deadlocked after the death of Justice Benjamin Cardoza.
     The court granted a rehearing petition and heard the case after Justice Felix Frankfurter was confirmed.
     Gershengorn notes that the court also approved several rehearing petitions in the 1940s.
     The Obama administration insists that U.S. immigration policy is too important to leave unresolved with a decision that gives no guidance to future presidents.
     “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,” the petition states.
     Ironically, Scalia’s hand in the DAPA appeal was expected to seal the injunction for Texas, as he would likely have tipped the scales for a conservative majority in any ruling.
     Before U.S. District Judge Andrew Hanen’s injunction, U.S. Citizenship and Immigration Services was slated to begin taking DAPA applications in May 2015.
     The Obama administration says the goal of DAPA is to keep law-abiding families together and prioritize deportation of serious criminals and new illegal arrivals, in the face of limited federal resources, a process known as prosecutorial discretion.
     Those who qualify would be granted three-year “lawful presence” and could apply for driver’s licenses and federal work permits.

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