Just a half hour before the Supreme Court gavels in its first argument session of its 2016–17 term, the justices quietly delivered bad news to millions of immigrants. On the 69th page of a 71 page list of routine orders, the Court announced on Monday that it will not rehear United States v. Texas, a case involving the legality of two policies that, together, would permit about 4.9 million immigrants to temporarily find work and remain in the country.
The Texas case concerned the administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”), as well as an expansion of the existing Deferred Action for Childhood Arrivals program (“DACA”). In February of 2015, just two days before the expanded DACA program was supposed to start accepting applications, a federal judge with a long history of anti-immigrant sentiments ordered a nationwide halt to both programs. On appeal, the case was then assigned to an especially conservative panel of judges, thus ensuring that the trial judge’s order remained in effect.
Then, last June, the shorthanded Supreme Court split 4–4 on the legality of DAPA and expanded DACA, a result which allowed the lower courts’ opinion to stand. The Justice Department promptly asked the Supreme Court to rehear the case — most likely after a ninth justice is confirmed who can provide the deciding vote on its legality. That request for a rehearing was denied by the Supreme Court on Monday.
DOJ’s request for a rehearing was always unlikely to be granted, as granting such a request requires five votes on the Supreme Court. Thus, a justice who opposed the programs in June would have needed to flip their vote in order to grant a rehearing. Nevertheless, advocates for the DAPA and DACA programs hoped that the Supreme Court would hold onto the case to expedite its ability to reach a decision after a ninth justice joins the Court.
As a practical matter, the Court’s denial of rehearing means that the case will likely need to proceed through another round of litigation before it can be heard by a fully staffed Supreme Court. The trial judge, Judge Andrew Hanen, granted a preliminary injunction suspending the programs, an order which judges issue before a case has undergone a full trial, so that trial still needs to take place. It is worth noting that Hanen has appeared to drag his feet on routine orders in the past in what may have been an effort to prevent DOJ from appealing his decisions. So, if DOJ has to wait for Hanen to conduct a trial, it could be a while before the Supreme Court resolves this case.
Hanen has also threatened draconian sanctions against the Justice Department — and against immigrants who are not even before his court. At one point, he even ordered a dox attack against tens of thousands of immigrants, although the judge since backed away from that order. It is likely that Hanen, who once described mercy towards an undocumented immigrant as a “dangerous course of action” will continue to make mischief for the Justice Department — and for the immigrants DOJ ultimately hopes to help — so long as he maintains a grip on this case.