US Seeks Rehearing in US v. Texas
The United States today filed a petition for rehearing in United States v. Texas, in which an equally divided Supreme Court affirmed the grant of a preliminary injunction barring the implementation of the Deferred Action for Parents of Americans (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) program. The United States seeks rehearing once the Court has a full complement of Justices.
Petitions for rehearing are rarely granted. However, this petition differs from the one filed in the ordinary case. Although conceding that such petitions generally are rarely granted, the United States relies on several cases in which a petition for rehearing was granted in cases in which a divided Court was missing a Justice because of an unfilled vacancy (as opposed to the Court being reduced to eight justices because of a recusal). Interestingly, unlike the frequent argument that the Court should grant certiorari because the issue is likely to arise again, the Solicitor General’s office contends that the petition should be granted because the lawfulness of the President’s “guidance” on prosecutorial discretion is unlikely to arise again absent a rehearing of the case.
KJ