White House Seeks Supreme Court Do-Over in Texas Immigration Case

Houston immigration reform advocates protest in June against the Harris County Sheriff's Office cooperation with federal immigration officials.
Houston immigration reform advocates protest in June against the Harris County Sheriff's Office cooperation with federal immigration officials.
Gilbert Bernal

Do-overs, as they should, conjure memories of childhood. The dog runs through your kickball game? Do-over. Ditto for flunking a science test.

But in the stoic chambers of the Supreme Court? Not so much.

Yet a do-over is precisely what the federal Department of Justice is proposing for a crucial case where Texas successfully blocked President Barack Obama’s executive immigration plan, which allowed undocumented parents of U.S. citizens to stay in the country and secure working papers.

In a petition Tuesday, the Obama administration asked the Supreme Court to re-hear the case when nine justices again sit on the bench. When that will be is anyone's guess.

See, the Supreme Court was hung 4-4 when justices delivered their ruling in U.S. v. Texas back in June. By law, if the court deadlocks on a case, the lower court’s ruling is affirmed. (In this case, the Fifth Circuit Court of Appeals, based in New Orleans, sided with Texas). 

The death of Associate Justice Antonin Scalia, a staunch conservative, in February has left the court with an even number of jurists, increasing the likelihood of deadlock. To make matters worse, the court is also evenly divided between its liberal and conservative wings.

Merrick Garland, the moderate liberal jurist Obama picked to succeed Scalia, would tip the ideological balance of the court and likely lead to rulings favored by Democrats. The Republican-controlled Senate, well aware of this, has refused to even hold customary hearings for Garland, let alone vote on his nomination.

A Hillary Clinton win in November would all but guarantee a liberal replacement for Scalia or convince Senate Republicans to confirm Garland. In either scenario, the new Supreme Court would more likely approve of Obama’s immigration plan than the bench with Scalia on it.

Rather than wait for a new case to wind its way up to the Supreme Court, a quick re-hearing of U.S. v. Texas could notch Obama the win he has been seeking to cement his legacy on immigration reform, long a goal of his administration.

In its request to the Supreme Court, the Justice Department notes that justices rarely re-hear cases, but asserted such an important issue warranted reconsideration. 

Historically, the Supreme Court agrees to hear about 1 percent of cases justices are asked to consider. Higher-profile cases are more likely to reach the docket, but that’s still a remarkably small number. And the office of Texas Attorney General Ken Paxton told the Texas Tribune it would continue to fight the White House over the case.

But with the days running out on the Obama presidency, can you blame the guy for throwing a Hail Mary on an issue that has long dogged his administration?


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