On the first day of its new term the continued absence of a ninth justice on the U.S. Supreme Court is apparent as the court declined to rehear a case from April that challenged President Barack Obama’s executive actions regarding immigration.
The case the justices heard last term involved a lawsuit in which 26 states accused Obama of exceeding his legal authority by creating a deferred action" program for parents of U.S. citizens and green card holders and by expanding an existing program for immigrants who entered the U.S. illegally as children. Both efforts offered quasi-legal status and work permits to those who qualified.
A 4-4 tie by the court last June effectively left in place the decision of a lower court barring the programs. The Obama administration asked the Supreme Court to rehear the case in hope that there’d be a ninth justice to replace Antonine Scalia, who died in February. Shortly after, Obama nominated Merrick Garland, chief judge of the United States Court of Appeals for the District of Columbia Circuit. Since than, however, the Senate majority leader Mitch McConnell has held no votes or meetings to move the nomination forward.
The federal judge who put the kibosh on the programs last year in federal district court in Brownsville, Texas, ruled:
...the administration did not comply with required notice-and-comment provisions for policy changes of that magnitude. A panel of the New Orleans-based 5th Circuit Court of Appeals, voting 2-1, upheld that ruling. The appeals court went even further, ruling that the executive branch had no legal authority to pursue the policies.
However, a case has been filed with U.S. District Court for the Eastern District of New York asking it
to declare that Hanen’s “nationwide” injunction against DAPA and DACA+ should not apply to immigrants who live outside the 5th Circuit.
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