By Marcia Coyle

The U.S. Justice Department on Monday asked the U.S. Supreme Court to rehear a challenge to the Obama administration’s plan to delay the deportation of nearly five million undocumented immigrants.

The justices on June 23 deadlocked 4-4 in United States v. Texas, leaving in place a lower court’s nationwide injunction that froze the deportation plan. The administration had sought to overturn the U.S. Court of Appeals for the Fifth Circuit, which upheld the injunction after finding the immigration action exceeded executive power. Texas and 25 other Republican-led states brought the challenge to the administration’s plan.

In an eight-page petition, acting solicitor general Ian Gershengorn acknowledged that the high court rarely grants rehearings. Still, he said, the court had granted them in the past where the 4-4 division occurred because of a vacancy on the bench—as exists now, after the death of Justice Antonin Scalia.

The U.S. Senate has refused to act on the president’s nomination of Merrick Garland to fill the vacancy created by Scalia’s death in February.

Gershengorn told the justices that the need for rehearing is “more pressing” than in two other 4-4 deadlocks last term: Friedrichs v. California Teachers Association and Hawkins v. Community Bank of Raymore. The justices denied rehearings in those cases.

Issues in those two cases were likely to recur, Gershengorn argued, but the nationwide injunction in the Texas case prohibits the government from implementing the deportation plan anywhere and the validity of the plan is unlikely to arise in any future case.

“This 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grant rehearing to provide for a decision by the court when it has a full complement of members, rather than allow a nonprecedential affirmance by an equally divided court to leave in place a nationwide injunction of such significance,” Gershengorn wrote.

Civil rights organizations applauded the administration’s decision to seek rehearing.

“Given the lives at stake, we join the Department of Justice in calling for a rehearing of the case before a fully staffed bench—this issue is just too important to leave to the tied decision of a hamstrung court,” Frank Sharry, executive director of America’s Voice, said in a statement.

Elizabeth Wydra, president of the Constitutional Accountability Center, said the Justice Department’s petition “highlights why the Senate leadership needs to stop its hyper-partisan gamesmanship and consider the president’s Supreme Court nominee, so the court can fulfill its constitutional role of declaring what the law is.”

A total of 3,532 rehearing petitions were filed—and the court granted three—between the 2006 through 2010 terms, according to research by a team from Mayer Brown.

Even if a new justice becomes available, it does not guarantee a rehearing petition will be granted. The new justice does not participate in consideration of the petition, but would take part in reargument and the judgment if a majority of the court grants rehearing.