Today, the Department of Justice filed a petition for rehearing with the Supreme Court in United States v. Texas. In June, the Court issued a 4-4 one sentence nondecision affirming the Fifth Circuit’s preliminary injunction of DAPA and expanded DACA.
In this new petition, the federal government specifically asked that a full nine-Member Court hear the case. DOJ urged that this is a case of significant importance and, “[t]his Court therefore should grant rehearing to provide for a decision by the Court when it has a full complement of Members, rather than allow a nonprecedential affirmance by an equally divided Court to leave in place a nationwide in-junction of such significance.”
Although, as DOJ acknowledges, the Court rarely grants rehearing, at the same time, “rehearing petitions have been granted in the past where the prior decision was by an equally divided Court and it appeared likely that upon reargument a majority one way or the other might be mustered.”