Election Issues and Immigration #9: Supreme Court Denies Petition for Rehearing in DAPA Case

Alexander J. Segal's picture

Introduction: Supreme Court Denies Petition for Rehearing in U.S. v. Texas

The highest profile immigration litigation over the past few years concerned President Obama's Deferred Action for Parents of Americans (DAPA) program. After a federal district court's preliminary injunction against the implementation of the DAPA program [PDF version] was upheld by the United States Court of Appeals for the Fifth Circuit [see article; decision], the federal government was granted a hearing by the Supreme Court [see article]. However, rather than finally resolving the issue, the Supreme Court deadlocked at 4-4, thereby affirming the judgment of the Fifth Circuit and upholding the preliminary injunction without setting any new precedent [see article; decision]. Subsequent to this adverse result, the federal government petitioned the Supreme Court for a rehearing, with the hope that the Court would take the case up again when it had nine members [see article]. However, on October 3, 2016, the Supreme Court denied the petition for rehearing without comment, thus finally returning the proceedings to the United States District Court for the Southern District of Texas, where they began.

Why Did This Happen?

Because the Supreme Court denied the petition for rehearing without comment, it is impossible to be sure of the exact reasoning. A minimum of four Justices is needed to grant a petition for rehearing, but we have no knowledge of which Justices, if any, favored granting the petition.

In general, it is uncommon for the Supreme Court to grant petitions for rehearing. Speculating on the instant case, the fact that the Supreme Court remains with only eight members was likely a factor in the decision. Had President Obama's nominee to the Supreme Court, Judge Merrick Garland of the D.C. Circuit, been confirmed in the interim, the requisite number of Supreme Court justices may have had reason to grant the petition for rehearing. However, being that the Court is still comprised of the same eight members who initially split 4-4 on the case, it would have been unlikely that granting rehearing would have yielded a different result.

What Does this Mean Going Forward?

The Supreme Court's decision to deny the petition for rehearing sends the case fully back to District Court. We may now expect Judge Andrew Hanen, who had issued the preliminary injunction, to move toward issuing a final decision regarding whether to make the temporary injunction against the implementation of DAPA permanent. Although there is no guarantee that Judge Hanen will make a final ruling against the implementation of DAPA, the tenor of proceedings in conjunction with his lengthy decision in implementing the preliminary injunction would lead most observers to conjecture that it is far more likely than not that Judge Hanen will rule against the federal government. Regardless of Judge Hanen's decision, the losing side will be able to appeal to the Fifth Circuit and, ultimately, to the Supreme Court.

Although President Obama will likely no longer be in office well before the issue is finally resolved, the litigation will continue to bear watching going forward. I discussed what is at stake regarding the DACA and DAPA litigation in my first blog post in my series of posts about immigration and the November elections [see blog]. Because Hillary Clinton not only supports DAPA but pledges to dramatically expand it, the her administration would likely continue arguing in federal court that the program should be implemented. However, it is worth noting that she would also have the option of endeavoring to work with Congress to reach an outcome that would meet her objectives. For his part, Donald Trump has stated that he would repeal both DACA and DAPA. This means that if Trump were to be sworn in, the federal government would likely stop pursuing the litigation in defense of the programs.

It is important to note that the final resolution of the DAPA case will have far greater implications than just on the fate of one immigration program. As I discussed in my earlier writings about the litigation, the case implicates both administrative procedure law and the extent of the President's discretionary authority under the Immigration and Nationality Act (INA). Furthermore, the Supreme Court had asked for briefing on whether the DAPA guidance violates the Take Care Clause of Article II, Section 3, of the United States Constitution the President must take care that the laws are faithfully executed). Although neither the District Court nor the Fifth Circuit addressed this third issue, it may yet be litigated in these proceedings.

Reactions from Both Sides

The Supreme Court's decision triggered reactions from all sides of the spectrum on the DAPA issue.

The American Immigration Lawyers Association — which is strongly in favor of President Obama's exercises of executive authority — announced its disappointment with the decision. AILA Executive Director Benjamin Johnson [see blog] stated that “the long wait continues for millions of families and thousands of communities and businesses around the country that have been seeking relief from the dysfunction and injustice caused by our outdated and inhumane immigration laws.” AILA President William A. Stock also focused on the legal aspects of the issue, stating his hope that when the case eventually returns to the Supreme Court it can “show appropriate deference to the executive branch and not legislate from the bench by enjoining this program permanently.”1

However, the Attorney General of Texas, Ken Paxton, took a very different view of executive power than did the AILA President. Paxton stated that”[t]his is the latest setback to the president's attempt to expand executive power and another victory for those who believe in the Constitution's separation of powers and the rule of law.”2 Noted conservative blogger Ed Morrissey wrote at Hot Air that “[h]ad Obama worked in more good faith on this issue rather than leveraging it for cheap demagoguery, he might have found a compromise with Congress.”3

My Reaction

In my posts about DAPA, I have explained why I think President Obama's approach has been in error. The administration showed acute disregard for procedural regularity, the restraints on executive authority in the INA and, arguably, for the President's duty to enforce the immigration laws. Furthermore, President Obama poisoned the well only to implement a program that would neither advance the cause of immigration enforcement nor give permanent relief to its beneficiaries. Although I would have preferred the Supreme Court to have issued a definitive ruling against the initiative, we were likely precluded from such an outcome upon the death of former Justice Antonin Scalia [see blog]. Nevertheless, I think that we can consider the Supreme Court ultimately sending it back to the lower courts for further litigation to be a favorable outcome. It is my hope that the next President, whether it is Clinton or Trump, will seek to work with Congress to implement an immigration program that will, first, prioritize enforcement and, second, devise an appropriate and permanent solution for the people who would have otherwise benefited from DAPA.

Read More

To learn more about current immigration effects and the November elections, please see my introductory blog post for the series [see blog].


  1. AILA Doc. No. 16100304 (Oct. 3, 2016)
  2. Francis, Laura, “Justices' Immigration Denial Means More Litigation,” bna.com, (Oct. 4, 2016)
  3. Morissey, Ed, “Breaking: Supreme Court denies Obama rehearing on U.S. v. Texas immigration fight,” hotair.com, (Oct. 3, 2016)
Election Issues and Immigration #9:  Supreme Court Denies Petition for Rehearing in DAPA Case