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Government Turns to History to Call for Immigration Rehearing

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By Casey C. Sullivan, Esq. on July 19, 2016 3:56 PM

When the Supreme Court deadlocked on President Obama's immigration reform plan, it marked a major defeat for the president. The four-to-four tie left in place a Fifth Circuit ruling halting Obama's immigration reforms, essentially bringing an end to a program that would have prevented the deportation of millions of undocumented immigrants -- and which the president had hoped would be one of his signature achievements.

But less than a month later, the government is asking for a second chance, petitioning for a rehearing once the court gets its ninth justice. Such rehearings are incredibly rare, but they are not unprecedented. To make its case, the government turned to the Court's own history, noting that an equally divided Court had reheard similar cases before -- many from the late 1800's. Hey, precedent is precedent.

Rare, but Not Unheard Of

The immigration case at issue involves the president's Deferred Action for Parents of Americans and Lawful Permanent Residents program, or DAPA. Under that program, created by executive order, millions of undocumented immigrants who have children that are American citizens or permanent residents would have had their deportation proceedings halted, allowing them to stay and work in the country for the foreseeable future.

A federal district court halted the program in February, 2015, and the Fifth Circuit upheld that nation-wide injunction -- twice. When the case came before the Supreme Court, it deadlocked, leaving those lower rulings in place.

In its petition for rehearing, the government acknowledges that "it is exceedingly rare for this Court to grant rehearing." But it has happened before. In cases where "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 exact situation that lead to deadlocks in four cases last term, "the Court has not infrequently granted rehearing before a full Bench."

Looking Back to History, Sometimes Far Back

And some of those instances occurred less than one hundred years ago. In 1938's United States v. One 1936 Model Ford V-8 De Luxe Coach, the government notes, the Court deadlocked following Justice Cardozo's death, then reheard the case when Justice Frankfurter took his place. Similar situations occurred in 1941, 1945, and 1954.

But to find a case where the Court faced the sort of lengthy delay the current eight justices could experience, the government had to look back further. The longest gaps between a grant of rehearing, where several years had passed, were from more than a century ago. For example, the Court granted rehearing in Home Insurance Co. v. New York in 1887, but the case was not reargued until 1890. The Court also granted rehearing to Selma, Rome & Dalton Railroad v. United States in 1887, but did not hear rearguments until 1891.

No one knows how long the Court will be down a justice, but our hope is that it won't take three to four years for Justice Scalia to be replaced.

What About the Other Deadlocks?

Tellingly, the government is not requesting rehearings in the other deadlocked decisions of the term. Cases such as Friedrichs v. California Teachers Association, about non-union members being required to pay duties to public unions, and Hawkins v. Community Bank of Raymore, over spouses who were forced to guarantee their partners' loans, are not as pressing, according to the government.

The issues behind those cases, the government posits, "may freely recur in other cases," allowing the Court an opportunity to address them in the future. The immigration dispute, however, "is unlikely to arise in any future case." If the Court does not resolve the issue, the petition argues:

a matter of 'great national importance' involving an 'unprecedented and momentous' injunction... 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 petitions and two for respondent States.

The Supreme Court itself, according to the government, "should be the final arbiter of these matters through a definitive ruling." That is, once it has a full staff again.

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