New York Times

Administration Asks Justices to Rehear Immigration Case

July 19, 2016

by Adam Liptak

WASHINGTON — The Obama administration on Monday asked the Supreme Court to take the unusual step of reconsidering a major immigration decision once a full nine-member court can hear the case.

Last month, the court deadlocked in the case, a challenge to President Obama’s plan to spare millions of unauthorized immigrants from deportation and to allow them to work lawfully in the United States. That left in place an appeals court ruling that had blocked the program.

The Supreme Court has been short-handed since Justice Antonin Scalia died in February, and it may remain so for some time. The 4-to-4 tie in the case, United States v. Texas, No. 15-674, set no precedent, and the court did not disclose how the justices had voted.

The administration’s petition said a matter of such importance should be resolved by a nine-member Supreme Court, which “should be the final arbiter of these matters through a definitive ruling.”

Recent history suggests that the administration’s request is a long shot. On June 28, for instance, the justices denied a request that it rehear a case on public unions that had also ended in a 4-to-4 deadlock.

The petition in the immigration case said the legal question the union case presented “may freely recur in other cases,” while the issue of the lawfulness of the immigration plan “is unlikely to arise in any future case.”

The administration acknowledged that the immigration case was at an early stage and could again reach the court in a later appeal. But the petition said that “there is a strong need for definitive resolution by this court at this stage.”

“This court therefore should grant rehearing to provide for a decision by the court when it has a full complement of members,” the petition said, “rather than allow a non-precedential affirmance by an equally divided court to leave in place a nationwide injunction of such significance.”