What is Happening with the Supreme Court Rehearing Request?


The wait has begun to see if the Supreme Court agrees to rehear the case that will decide if President Obama’s DAPA program ever goes into effect.

After the Supreme Court’s non-decision in June on the case of United States v. Texas left a Texas District Court injunction blocking implementation of the president’s executive action on immigration in place, the Obama administration asked for a new hearing three weeks ago. The hope is that the 4-4 tie could be resolved in a hearing next year when a new Justice is appointed to the seat left vacant by Antonin Scalia’s death.

Last week the clerk of the Supreme Court transmitted the request for a rehearing to all eight of the Justices. I have gotten several questions from readers about what happens next. They wonder if the Supreme Court has a time-line for deciding whether to order the case reheard.

First, rehearings are fairly rare. While they have been ordered at different times over the last century when a Court vacancy has led to a tie vote on a case, they are the exception rather than the rule. The most recent request for a rehearing was in a labor law case last term. The request was ignored for months by the Court and then dismissed without any opinion being issued. The basic rule on requests for rehearings is that the Supreme Court is not bound by a lot of rules in deciding whether to rehear.

While the Supreme Court could order a new hearing on United States v. Texas within the next few weeks, the request is more likely to remain pending until the results of the Presidential election are known. As lawyers often say, the Supreme Court reads the results of elections. Knowing who the new president will be will, perhaps, help determine whether this case is reheard.

In any event, even if a rehearing is not ordered, the case could go back to the Supreme Court in two years after the District Court trail of the case is completed.

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