The Department of Justice asked the Supreme Court on Monday to rehear a case in which it split 4-4 over President Obama’s programs to allow millions of undocumented immigrants to stay in the country and apply for work authorization. The programs are currently blocked by a lower court ruling.

Key points:

  • In a Petition for Rehearing, the Obama administration asked for a rehearing before a full nine-member Court. The Court currently has a vacancy since Justice Antonin Scalia passed away in February.
  • In the filing, Acting Solicitor General Ian Heath Gershengorn said the Court should reconsider the injunction with a “full complement” of justices “rather than allow a nonprecedential affirmance by an equally divided Court to leave in place a nationwide injunction of such significance.”

Background: In May, an evenly divided Supreme Court affirmed a ruling by the U.S. Court of Appeals for the 5th Circuit blocking Obama’s plans to expand the Deferred Action for Childhood Arrivals (DACA) program and create a similar program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).

BAL Analysis: The administration’s request for a rehearing is considered a longshot. The filing acknowledged that it is “exceedingly rare” for the Court to grant rehearing, but said that in cases involving a vacancy the Court has granted rehearings more frequently. While the May ruling was a significant defeat for the Obama administration and supporters of his immigration programs, it did not impact the administration’s immigration policies related to high-skilled workers.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact

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