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Can we try this again with nine Justices, please?

Can’t hurt to ask.

The Obama administration on Monday asked the U.S. Supreme Court to reconsider the legality of the president’s controversial immigration enforcement plan, which stalled last month when the high court deadlocked on an appeal.

The program, known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, was announced in November 2014 and would have shielded about 4 million undocumented immigrants from deportation. It was scheduled to go into effect in February 2015 but was halted that month by U.S. District Court Judge Andrew Hanen of Brownsville.

Hanen ruled that the administration violated the Administrative Procedure Act, which governs how federal regulations are made and how much input the public has. His decision was upheld by the U.S. 5th Circuit Court of Appeals.

The Justice Department appealed to the Supreme Court, but without a full complement of judges after the death of Justice Antonin Scalia the high court deadlocked 4-4, effectively upholding the 5th Circuit’s ruling. In Monday’s filing, the administration asked the court to hear the case again when it has nine justices.

“This filing is consistent with historical practice and reflects the need for prompt and definitive resolution of this important case,” Department of Justice Spokeswoman Melanie Newman said in a statement.

The filing for rehearing by the Department of Justice concedes the Supreme Court rarely rehears ordinary cases. But it argues it’s not unheard of when the court is missing a justice.

“Ordinarily, it is exceedingly rare for this Court to grant rehearing,” the petition states. “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.”

See here for the background. As I understand it, all of the cases for which SCOTUS split 4-4 are still basically undecided, since without a definitive SCOTUS ruling there’s no governing opinion, and there remains the chance of conflicting opinions from appeals courts. As such, they can and in most cases will continue on and find their way back to SCOTUS eventually. Here, the district court hasn’t even had a trial – the fight was over the judge’s injunction that put the DAPA and expanded DACA orders on hold pending the litigation – so it makes sense to ask to jump the line when the Court is back at full strength. Assuming it ever is, of course – these days one needs to be careful about what assumptions one operates under. I have no idea how this is going to work, but as I say it can’t hurt to ask. A copy of the petition is here, and SCOTUSBlog, which characterizes this as a “longshot”, has more.

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