Justice Department calls for a Supreme Court do-over on landmark immigration ruling

There could be life after death for DAPA.

Nearly a month after the Supreme Court’s 4-4 split decision effectively killed two executive actions designed to provide temporary deportation relief and work permits for up to 4 million undocumented immigrants, the Department of Justice has called for a do-over.

Supreme Court rehearings are uncommon, but in this case the Court was unable to pass a definitive ruling because it’s short-staffed. So the Department of Justice has filed a petition for a proper rehearing once the Court has a full bench.

If the Supreme Court fails to rehear the case, known as United States v. Texas, it’s essentially delegating a “matter of great national importance involving an unprecedented and momentous injunction” to a lower court, the Department of Justice argues. In other words, it’s the Supreme Court’s duty to be the final word on the matter, once they’re playing with a full set of gavels.

Or in legal talk: “This Court therefore should grant rehearing to provide for a decision by the Court when it has a full complement of Members, rather than allow a nonprecedential affirmance by an equally divided Court to leave in place a nationwide injunction of such significance.”

If the rehearing is granted, both sides would reargue their cases before a full Supreme Court and the ninth justice would break the tie.

Immigration lawyers and activists are cheering the petition for a rehearing as a second chance for the Supreme Court to get it right.

“The Supreme Court failed millions of immigrant families, and our country as a whole, when it deadlocked in U.S. v. Texas. Now, the justices have an opportunity to right this wrong and fulfill their duty to the American people,” Marielena Hincapié, executive director at the National Immigration Law Center, said in a statement this afternoon. “U.S. v. Texas is without a doubt one of the most consequential immigration cases in recent history…We commend the Justice Department for taking a necessary first step toward ensuring that those whose lives are hanging in the balance get a fair day in court. We hope the Supreme Court will recognize that the millions of families living in limbo—and our country as a whole—deserve better than a non-decision.”

On June 23, the short-benched Court cast a split vote on the legality of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expansion of Deferred Action for Childhood Arrivals (DACA), President Obama’s stopgap measures to prevent the deportation of millions of undocumented immigrants. The tie essentially upheld a lower court ruling that determined the president does not have the constitutional authority to change immigration policy by decree.

Obama lamented the Court’s non-decision, saying it “takes us further from the country we aspire to be.” He again stressed the need for real immigration reform.

“Leaving the broken system the way it is, that’s not a solution,” Obama said on June 23, adding: “sooner or later, immigration reform will get done. Congress is not going to be able to ignore America forever.”