DOJ Seeks Supreme Court Rehearing in Immigration Case

By Allen Smith, J.D. Jul 22, 2016
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​The Department of Justice wants to revive two of President Barack Obama's immigration programs

​The upcoming presidential election likely will affect whether the Supreme Court decides to rehear a case that put a stop to two of President Barack Obama's immigration programs.

In a deadlocked decision, the Supreme Court on June 23 upheld a lower court's injunction of two immigration programs, one that allowed undocumented immigrants to work and the other that permitted immigrant children born in the United States to stay in the country. The decision left the injunction in place but does not have any precedential value (that is, it cannot be used as case law to guide future decisions) since it was a tied (4-4) opinion. The high court should rehear the case, argued the Department of Justice's (DOJ's) Acting Solicitor General Ian Heath Gershengorn in a July 18 petition.

If presumptive Democratic party presidential nominee Hillary Clinton wins the election, one of two things will happen: either the Senate will appoint Merrick Garland—whom Obama nominated to fill Justice Antonin Scalia's seat after he died in February—or Clinton will nominate another judge to go through the confirmation process, said Justin Storch, manager of agency liaison at the Council for Global Immigration, an affiliate of the Society for Human Resource Management.

In either of those scenarios, the case is likely to be reheard and the injunction of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and expanded Deferred Action for Childhood Arrivals (DACA) program overturned, Storch predicted. DAPA and the expanded DACA, both unveiled on Nov. 20, 2014, would have granted almost half of the nation's estimated 11 to 12 million undocumented immigrants three years of deportation relief and work authorization.

Storch thought it was unlikely the case would be reheard before the election or if Republican party nominee Donald Trump wins.

Yet, Kevin Lashus, an attorney with Fisher Broyles in Austin, Texas, said he thought the chances of the Supreme Court rehearing the case are "exceedingly unlikely" regardless of the outcome of the election.

Rationale for Rehearing

Gershengorn himself acknowledged in his petition that "ordinarily, it is exceedingly rare for this court to grant rehearing." However, he added that when the court has deadlocked because of a vacancy, rehearings have been more common.

Other cases have deadlocked this term, including Friedrichs v. California Teachers Ass'n on June 28. That case involved a claim by California public school teachers who asserted that compulsory union dues payments are unconstitutional—a claim rejected by a lower court. The Supreme Court already has declined to rehear this case. Gershengorn said the issues in Friedrichs are likely to recur in other cases, so a rehearing wasn't warranted.

By contrast, the preliminary injunction in this case prohibits the government from implementing DAPA and the expanded DACA anywhere nationally. A permanent injunction is likely to be just as broad, and there are no other pending cases challenging the programs, Gershengorn added. Unless the court resolves the case in a precedential manner (since deadlocks are not precedential), a matter of great national importance will have been resolved by a deadlocked opinion, not a decision with an actual majority.

"As it stands now, because the court was deadlocked, there was not even an opinion outlining the reasoning of the court," said Mira Mdivani, an immigration attorney in Overland Park, Kan. "Instead, the court issued a one-sentence decision basically saying 'We are deadlocked, therefore, the lower court's decision stands.' This is no way to address our country's pressing legal issues.

"From a business point of view, without a definitive decision, employers continue to be under the gun to comply with the requirements of the Immigration Reform and Control Act to hire workers legally, and are subject to civil and criminal penalties for violations," she said. "Congress does not provide any legal means to U.S. employers to hire these available workers in the U.S. Employers are at risk of hiring workers with fake documents. Some employers outsource their production abroad to where the labor is because they are unable to hire workers in the U.S. legally."

"The administration sought to implement DAPA and expanded DACA to lower the priority of removal of certain noncriminals," said Peter Asaad, an attorney with Immigration Solutions Group in Washington, D.C. DAPA and expanded DACA were important tools because they allow for more government resources to be focused on dealing with violent criminals, Asaad added.

Any Rehearing Won't Be Soon

If the Supreme Court grants rehearing in this case, it is likely a rehearing won't take place until after a new president takes office, said Yova Borovska, an attorney with Buchanan, Ingersoll & Rooney in Tampa, Fla.

"The court's decision to grant rehearing is discretionary and could take months," she said. "A reargument would not take place until the ninth justice is confirmed. It is likely that the Senate will not confirm a ninth justice until a new president takes office in 2017. As a result, reargument would likely not be scheduled until the court's 2017-18 term, and a decision would not be expected until 2018. By then, the new president's administration may no longer support the request for rehearing and the underlying immigration policy established under the Obama administration."

This case is United States of America v. State of Texas, No. 15-674. 

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