By Josh Gerstein
October 3, 2016
The Supreme Court has declined to rehear a challenge to several of President Barack Obama's key executive actions on immigration, leaving undisturbed a 4-4 tie earlier this year that effectively killed the initiatives for the remainder of his presidency.
The Obama administration asked the justices to revive the case on the possibility that a new justice would be confirmed and sworn in this term, but the justices rejected that request on the first day of their new term Monday without comment or any noted dissent.
Obama has nominated D.C. Circuit Chief Judge Merrick Garland to the seat formerly held by Justice Antonin Scalia, who died in February, but the Republican-controlled Senate has refused to act on the nomination.
The case the justices heard last term involved a lawsuit in which 26 states accused Obama of exceeding his legal authority by creating a new "deferred action" program for parents of U.S. citizens and green card holders and by expanding an existing program for immigrants who entered the U.S. illegally as children. Both efforts offered quasi-legal status and work permits to those who qualified.
However, a federal district court judge in Brownsville, Texas, put those initiatives on hold early last year, ruling that the administration did not comply with required notice-and-comment provisions for policy changes of that magnitude. A panel of the New Orleans-based 5th Circuit Court of Appeals, voting 2-1, upheld that ruling. The appeals court went even further, ruling that the executive branch had no legal authority to pursue the policies.
The Supreme Court announced in June that it deadlocked, 4-4, in the case—a result which left in place the injunctions barring the programs.
The White House had no immediate comment on the high court's announcement Monday, but a Justice Department spokeswoman said officials there are mulling what to do next.
"We are disappointed in the Court's decision and we are considering next steps," Justice spokeswoman Dena Iverson said.
Texas Attorney General Ken Paxton, whose office spearheaded the suit, said the high court's decision not to take up the issue again was a vindication.
"The State of Texas’ position has been validated by the U.S. Supreme Court today as they denied the Obama administration’s petition to rehear the immigration case," Paxton said in a statement. "Rewriting national immigration law requires the full and careful consideration of Congress. This is the latest setback to the president’s attempt to expand executive power and another victory for those who believe in the Constitution’s separation of powers and the rule of law.”
Rehearing of cases at the court is almost never granted, so it's unclear what led the justices to turn down the Justice Department's request to put the case back on the docket.
The justices may have concluded that it's unlikely they'll have a new colleague anytime soon, so it was unwise to let the case linger indefinitely. They could also be trying to keep up the heat on the political branches to fill Scalia's seat.
For more information, go to: www.beverlyhillsimmigrationlaw.com