Legal experts are casting doubt on the Obama administration’s ability to revive an executive order that would shield millions of undocumented foreign nationals from deportation.
“It is a long shot,” said New York Law School professor Ari Waldman.
On Monday, while Republicans railed against illegal immigration at their party’s national convention, the Justice Department asked the Supreme Court to rehear arguments on whether the administration may defer deportation and grant work permits to roughly one-third of the estimated 12 million undocumented immigrants in the United States.
The High Court, operating with eight justices since the death of Antonin Scalia in February, deadlocked four-to-four on the case last month. As a result, a lower court’s injunction blocking President Barack Obama’s unilateral attempt to address illegal immigration remains in effect.
In a petition, acting Solicitor General Ian Gershengorn requested a rehearing “before a full nine-Member Court.”
The administration’s top lawyer acknowledged that High Court do-overs are “exceedingly rare,” but he argued they are not unprecedented when a vacancy on the bench yields a split decision.
Obama nominated federal appellate judge Merrick Garland to fill the Supreme Court vacancy. The Republican-led Senate has refused to vote on any High Court nominee until after the November election.
Obama Executive Order
The president’s executive order would cover undocumented immigrants who were brought to the United States as minors, as well as the undocumented parents of U.S.-born children. Advocacy groups cheered and jeered the administration’s refusal to give up on the initiative.
“Last month’s four-to-four tie in the Supreme Court was tremendous blow to millions of immigrant families,” said Frank Sharry, executive director of the pro-immigrant rights group America’s Voice. “Given the lives at stake, we join the Department of Justice in calling for a rehearing of the case before a fully staffed bench — this issue is just too important to leave to the tied decision of a hamstrung court.”
“Rehearing this case is the right thing to do, so that millions of American families will finally know where they stand, and whether America stands with them,” said the American Immigration Lawyers Association in a statement. “The position we find ourselves in, with a Congress unable to lead on immigration reform, and a Supreme Court unable to reach a decision, is an unusual and untenable situation that warrants a rehearing.”
Those favoring restrictive immigration policies argued that Obama overstepped his authority by seeking to grant de facto amnesty to millions of law breakers, and that the Supreme Curt acted properly by keeping the injunction in place.
“If these kinds of executive orders were allowed to continue, then the president decides how many and who get to come into the country, not Congress,” said Roy Beck, director of NumbersUSA. “This is a constitutional crisis in that the Congress itself has not stood up for its own rights.”
Election Year Politics
Beck sees election year politics at work with a petition that, successful or not, resonates with core Democratic constituencies.
“It’s a last-ditch attempt. It’s for show, to show their open-border supporters that they [the administration] tried to do everything they could,” Beck said. “It was the only way they could try to get these work permits out before the president leaves office.”
Granting a rehearing would require the backing of five Supreme Court justices.
On an eight-member court, it would mean that one of the four who voted against the administration on the injunction would have to side with the four who voted to allow the executive order to proceed, something court-watchers deem highly unlikely.
“I assume the administration is hoping that the court will hold off on making a rehearing decision until a ninth justice is in place,” Waldman said. “All in all, I would file this one under ‘It doesn’t hurt to ask.’”
The White House says it remains confident in the legality of the president’s executive order.
“The Supreme Curt was unable to reach a decision about the administration’s executive actions,” said White House spokesman Josh Earnest. “The filing from the Department of Justice is merely an effort to pursue every available legal avenue, because we believe in the power of the legal argument in support of the president’s actions. We continue to have confidence in the power of our legal arguments, and we are going to make them in every available venue.”