Following the U.S. Supreme Court’s June 23, 2016 non-precedential affirmance of the judgment of a divided Fifth Circuit Court of Appeals in United States v. Texas, which left in place U.S. District Judge Andrew Hanen’s preliminary injunction barring implementation of guidance relating to deferred action for parents of American citizens (“DAPA”), attorneys for the Department of Justice have filed a petition for rehearing of the case.
The petition for rehearing requests the Supreme Court to hear the case again once a ninth member of the Supreme Court has been appointed to fill the vacancy left by the death of Justice Antonin Scalia. In its petition, the U.S. government argues that rehearing would be appropriate because a decision by a full Court would leave no possibility of a tie vote, and the preliminary judgment blocking the government’s deferred action program is of such great national importance that the Supreme Court should say finally what the law is once a majority can be had.
The government acknowledges in its petition that rehearing petitions are rarely granted by the Court. Furthermore, the issues raised in connection with the preliminary injunction could arise in a later stage of the case and be revisited on appeal, which would be a reason for the Supreme Court to deny the rehearing petition. But in filing the petition the government is also betting that a five-vote majority could be obtained that would insulate the DAPA program from further legal challenge. That is in part a political calculation. Thus far the Senate has refused to hold confirmation hearings on Merrick Garland, current Chief Judge for the U.S. Court of Appeals for the District of Columbia Circuit, who was nominated by President Obama last March to fill the Supreme Court vacancy.