The Obama Administration is looking for a second bite at the apple, asking that the Supreme Court rehear a challenge to President Barack Obama’s executive amnesty programs.
In a petition to the court, Acting Solicitor General Ian Gershengorn requested that the justices rehear the case once the seat of the late Justice Antonin Scalia is filled and the court stands at nine members.
“Ordinarily, it is exceedingly rare for this Court to grant rehearing. But when this Court has conducted plenary review and then affirmed by vote of an equally divided court because of a vacancy rather than a disqualification, the Court has not infrequently granted rehearing before a full Bench,” the Justice Department’s petition reads.
The effort would put Texas and 25 state’s challenge to Obama’s 2014 executive amnesty programs — Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) — back on the court’s to-do list.
Last month the eight justices currently on the Supreme Court divided on the matter, issuing a single sentence order “The judgment is affirmed by an equally divided Court.” The 4-4 decision left a lower court’s ruling, blocking the executive amnesty programs, in tact.
While the Justice Department’s petition acknowledged the rarity of rehearings, it highlights several precedents for reconsidering a case, the most recent of which was in 1954.
Even if the court eventually agrees to the government’s request, a rehearing is unlikely to happen under the current administration. The Republican-controlled Congress has to date stood firm on it’s plan to not move on any Supreme Court nominee until after the upcoming presidential election, leaving the court still divided at 8 justices.