As Trump considers going to SCOTUS and issuing a new Executive Order.
So this is curious.
A Judge at the 9th Circuit, whose name is not revealed, has requested a vote be taken whether to conduct en banc (full court) review of the February 9, 2017, Order by a three-judge panel denying Trump’s request for a stay of the District Court Temporary Restraining Order.
That TRO put a halt to all substantive aspects of Trump’s immigration Executive Order, including the temporary halt to visa entry from six failed states known for ISIS and al Qaeda presence, plus state sponsor of terrorism Iran.
Because the 9th Circuit is so large, en banc review only goes to 11 Judges.
The request by a Judge triggers a procedure, outlined in the docket entry and a formal Order, by which the parties have to file briefs stating their position:
(h/t to reader Cindy for the images)
We can all speculate on why a Judge would do this. The Judge may be upset with the panel ruling, which has been extensively criticized, and expects that a larger en banc review may reach a different result.
That would make sense because the TRO and denial of a stay creates an outrageous result:
En banc review would take time. Normally it would take months, but perhaps since initiated by a Judge, it would be expedited. Unless expedited, it’s something of an exercise in futility since the District Court is on an expedited schedule for a preliminary injunction ruling (the next stage in a case after a TRO).
Perhaps that unnamed Judge, however, recognizes the timing problem and is sending a signal to the Supreme Court that this might be a case where the Supreme Court needs to grant the stay of the TRO.
There have been conflicting reports tonight as to whether Trump will seek SCOTUS review. Initial reports said Trump would not seek SCOTUS review, then later reports said the issue is not decided yet.
Will the White House appeal a court ruling against President Trump’s executive order barring travel from seven Muslim countries to the United States or won’t it?
The White House sent conflicting signals on Friday evening, with chief of staff Reince Priebus saying the administration was still considering an appeal to the Supreme Court after a lower court soundly rejected its request to reinstate the order.
Priebus’s statement came roughly an hour after a White House official said it was not planning to challenge the Ninth Circuit Court of Appeals ruling upholding a temporary restraining order (TRO) blocking the ban.
And Trump himself has said a new order on security could come next week.
Priebus told The Washington Post that “every single court option is on the table, including an appeal of the Ninth Circuit decision on the TRO to the Supreme Court.
There are other reports that DOJ may rewrite the Executive Order.
Trump appeared at the rear of Air Force One and indicated that he was confident that he would win the court case, and was looking at additional immigration protections to be rolled out on Monday or Tuesday.
I laid out my position this morning, in a post typed out at a McDonald’s while I was on one of my 6-hour drives between Ithaca and Rhode Island. I just had to get it off my chest. Call it McBlog Post or McRant if you want, I called it, President Trump must not back down on immigration Executive Order:
I have seen many analyses critical of the 9th Circuit ruling which urge the Trump administration to take a step back, to withdraw the current Executive Order and rewrite it to fit what is acceptable to the 9th Circuit. The Trump administration, according to some reports, is considering doing that.
That would be a grievous mistake.
The Executive Order, as the Trump administration has said it would be enforced (for example, excluding green card holders from its reach), is perfectly lawful and within the President’s power and authority. To accept the 9th Circuit ruling is to accept that the President does not have the powers vested in him by the Constitution and Congress.
This legal dispute no longer is just about the Executive Order. Democrats have made clear that they will fight in court over almost everything the Trump administration does. The 9th Circuit has opened the door to this tactic on an issue that goes to the core of presidential authority.