Supreme Court Won’t Rehear Immigration Case

New term begins with eight justices trying to avoid tie votes

The Supreme Court starts its 2016-17 term with only eight justices. (Bill Clark/CQ Roll Call file photo)
The Supreme Court starts its 2016-17 term with only eight justices. (Bill Clark/CQ Roll Call file photo)
Posted October 3, 2016 at 11:51am

Updated 1:40 p.m. | The Supreme Court announced Monday that it won’t rehear a case that has stopped the Obama administration’s executive actions on immigration and affected millions of people who are living in the country illegally.

The justices deadlocked 4-4 last term, leaving in place a lower court order that halted implementation of the actions. The lower court had sided with Texas and 25 states, led mostly by Republican governors, that argued the administration had overstepped its authority with the immigration actions.

The move was among the first as the short-handed and ideologically split Supreme Court eased back into action Monday for its 2016-17 term, and it came without any comment from the eight justices. It indicates, however, that the court thought it was still split evenly on that issue and is uncertain about when a ninth justice might be confirmed to break a tie in that and other cases.

[Supreme Court Tie Blocks Obama’s Immigration Plan]

Senate Republicans continue to block the confirmation process for Judge Merrick Garland, President Barack Obama’s pick to fill the seat of the late Justice Antonin Scalia, who died Feb. 13. As of Monday, Garland has now been waiting 202 days for Senate consideration — the longest for any Supreme Court pick since at least 1900.

When a ninth justice joins the court is largely dependent on the outcome of the November elections, which will determine who is in the White House and which party has control of the Senate.

Despite the blockade, the Supreme Court declined a chance to flex its muscle as the third branch of government and force the Republican-controlled Senate to hold confirmation hearings for Garland, currently chief judge of the U.S. Court of Appeals for the D. C. Circuit. The Supreme Court court denied without comment a petition inviting them to issue such an order.

[Obama Taps Merrick Garland for Supreme Court]

In the petition, a New Mexico man argued that the Supreme Court had the authority to order confirmation hearings in part because the Constitution says the Senate shall provide “advice and consent” on the nomination. And Daniel Rubin says his petition “does not ask that the Court interfere with politics, but to insure that politics does not interfere with the Constitution.”

Justice Ruth Bader Ginsburg, in a public appearance in Washington last month, said there’s no legal way to force the Senate to act on Garland’s nomination.

Ginsburg said at the time that the Senate’s potential response to such an order from the Supreme Court would likely be: “’Well, you want us to vote, so we’ll vote no.’”

[The Full Court Press for Merrick Garland]

Senate Minority Leader Harry Reid, D-Nev., used the occasion to criticize Republicans for not holding a vote on Garland — and hinted that the nominee could sway the outcome on the immigration case toward Obama. 

“The United States needs a full Supreme Court that will throw out this politically motivated lawsuit and put the issue to rest once and for all,” Reid said in a written statement. 

Also on Monday, the Supreme Court denied a request from the Washington Redskins to hear a challenge to a lower court order that canceled their trademark. The justices, however, already have announced they will hear another case with similar trademark issues this term. The court so far has agreed to take on cases dealing with redistricting and the president’s appointment power and could add one on the high-profile issue of transgender rights.