Obama Administration Seeks Rehearing on DACA/DAPA Case

On July 18, 2016, the Obama administration filed a petition for the Supreme Court to rehear United States v. Texas.  Although the administration concedes that it is very rare for the Supreme Court to rehear a case, it believes that the current make-up of the Supreme Court merits exactly that.  After the passing of Justice Scalia last February, the Supreme Court was left with only eight justices and a vacant seat.  This resulted in a deadlocked Supreme Court, that issued a one-sentence long decision to punt the case back to the Fifth Circuit, and left intact the previous order blocking the President’s executive action programs from going into effect.  This decision prevents both the proposed expansion of the Deferred Action for Childhood Arrivals (“DACA”) program, and the implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program from going into effect.

The petition for rehearing asks that the Supreme Court rehear the case once Justice Scalia’s vacancy is filled, and there are nine Justices on the bench.  If the Supreme Court agrees to rehear the case, the new Justice would serve to break the tie and would essentially decide the fate of President Obama’s deferred action programs.  However, the Supreme Court has not decided whether or not it will rehear the case.

It is important to note that the 2012 DACA program remains in effect.  The Supreme Court ruling in United States v. Texas does not alter that program.

By Stephanie Delgado | August 23, 2016

Legal Developments