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9th Circuit denies Trump “immediate administrative stay” pending further briefing

9th Circuit denies Trump “immediate administrative stay” pending further briefing

No decision on the attempt to reinstate the Immigration Executive Order at least until Monday night

Just before midnight Pacific time on Saturday night, February 4, 2017, a three-judge panel of the 9th Circuit Court of Appeals, in a short-form Order, refused to stay a lower court ruling that had halted Trump’s Executive Order on visas and refugees.

A copy of the Order is at the bottom of this post.

The Order reads:

The court has received appellants’ emergency motion (Docket Entry No. 14). Appellants’ request for an immediate administrative stay pending full consideration of the emergency motion for a stay pending appeal is denied.

Appellees’ opposition to the emergency motion is due Sunday, February 5, 2017 at 11:59 p.m. PST. Appellants’ reply in support of the emergency motion is due Monday, February 6, 2017 at 3:00 p.m. PST.

The Order was filed just two and one half hours after the government filed it’s Emergency Motion for a Stay Pending Appeal.

While it would have been extraordinary to grant a stay without the opposition having a chance to be heard, as of now the briefing schedule provides two more days in which people who otherwise would not be allowed to enter the U.S. can enter.

I’m not sufficiently familiar with the procedure for an emergency stay to the U.S. Supreme Court to know whether the government could go to the Supreme Court for a Stay today. The application would be referred, initially, to Justice Anthony Kennedy, who is the Supreme Court Justice assigned to the 9th Circuit for such emergency applications. It is common for Justices to refer stay applications to the full court, thought Kennedy could grant it himself.

If I were the government, and if I could do it procedurally, I’d be in front of Kennedy today.

The District Court temporary restraining order, which did not even address the merits of the case other than a single conclusory sentence, is a legal abomination in which the judiciary usurped immigration control even as to people who have not yet entered the U.S. and hold no permanent residency. That TRO is so legally improper on its face it should have been stayed immediately by the 9th Circuit.



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It’s the Ninth Circus, the most overturned court by a huge margin, what did anyone expec?

    The 9th Circus Court has always been the asshats in the court system, left coast hacks! Did we really expect anything different from these screwballs? This was set up perfect by the leftists, court in Washington makes bogus ruling on late Friday so any appeal must go thru the 9th Circus. This may be the way the left begins to operate….weekend warriors…opening small windows of advantage thru actions in the west coast court system. Stay tuned!

    I know, inconvenient facts get downvoted here, but this is just a meaningless claim. Yes, in terms of raw numbers, over the past four Terms. the Ninth Circuit has been overturned by SCOTUS more often than any other circuit. They’ve also had more cases granted cert than any other circuit in each of those years. All together, they’ve had the most affirmed over that period as well.

    Here’s the aggregate from OT12-OT15 (idk how to make a better chart)


    CA9 certainly doesn’t have a uniquely high *rate* of cases overturned. It has the most overturned, but also the most affirmed. I’m not sure where this myth of them being rogue started, but it’s not based on reality.

      RobM in reply to Awing1. | February 5, 2017 at 2:17 pm

      Awing1, your chart is appreciated, but the 9th has that rep going back to the 1970’s when Carter packed it. It is outsized and has so many judges it is easier to get 3 who are on the odd side of the spectrum to hear appeals. Needs to be split up.

        Awing1 in reply to RobM. | February 5, 2017 at 2:21 pm

        I agree it needs to be split up, but it’s reputation doesn’t match the facts, at least not in the past four years. Id also point out “it decides nearly double the cases of the next busiest court” is a much more persuasive argument for breaking it up than “it’s decisions are too liberal”.

          Gremlin1974 in reply to Awing1. | February 5, 2017 at 6:14 pm

          Well if you look at it by population represented per court, the entire circuit court system needs to be redrawn. With the exception of the DC and the Fed, which are actually tend to be pretty specialized courts.

          Looking at he 1st through the 11th, the spread is 1.4 million (10th) vs 2.7 million (9th) that seems like to big a spread to me.

          Awing1 in reply to Awing1. | February 5, 2017 at 6:37 pm

          I think that’s population represented per judge. The better measure, I think, is the one you stated, population per court, and the difference is stark. The First Circuit contains 14 million people, the Ninth contains 62 million. The next closest to the Ninth is the Eleventh, which has 33 million. There’s a strong case for breaking up the Ninth Circuit.

          But this demonstrates my point further that the “number of reversals” is not a useful metric, the Ninth Circuit has the largest population by far, and thus their more likely to have a higher number of cases decided (which I’ve shown elsewhere is true, by a similar margin as the population), a higher number of decided cases granted cert (also true), a higher number reversed (also true), and a higher number affirmed (also true). It’s not because any one decision of the court is more likely to be reversed or more likely to be affirmed, it’s just because they have so many more cases by far.

      Barry in reply to Awing1. | February 5, 2017 at 4:55 pm

      However one wishes to whitewash the 9th, one thing is clear, if it comes out of cali, it is most likely it will be reversed.

      41 reversed out of 53 is certainly a poor record.

        Awing1 in reply to Barry. | February 5, 2017 at 6:10 pm

        By what measure is that not good? If it comes out of the Third, Sixth, or Eleventh Circuits, it has an even higher chance of being reversed, at least in the last 4 years using that measure. That’s not whitewashing, that’s a fact. If you’d rather use cases terminated by number of reversals, so that way you get a picture of the number of reversals compared to the total decisions made by the circuit, here’s that measure (using number of cases terminated in the circuit between 2011-2014 compared to number of SCOTUS reversals between OT12-OT15, since cases decided by the circuit in 2011-2014 would most likely go to SCOTUS in OT12-OT15). Here’s the actual rate of reversals for that time period, ordered from circuit with the highest rate to circuit with the lowest rate (based on SCOTUSBlog circuit scorecard reversals and the US Courts annual federal judicial caseload statistics):

        Cir. Reversal Rate
        CADC 0.158%
        CA08 0.110%
        CA10 0.090%
        CA06 0.087%
        CA01 0.083%
        CA09 0.079%
        CA05 0.076%
        CA03 0.074%
        CA11 0.062%
        CA02 0.050%
        CA04 0.049%
        CA07 0.041%

        If you don’t like that measure, provide whatever it is you’re using to come to your conclusion. From everything I can see, this idea that Ninth Circuit decisions are more likely to be overturned than decisions of any other circuit is either out of date, or just plain false.

          Gremlin1974 in reply to Awing1. | February 5, 2017 at 6:29 pm

          You simply refuse to ignore the fact that the 9th circus is known nationally as the “reliably Liberal” court. That should never happen, no court should be “reliably” anything other than objective. But this is what happens when you have something a moronic as lifetime appointments.

          Awing1 in reply to Awing1. | February 5, 2017 at 6:40 pm

          I don’t refuse to accept that it has a reputation, I’m showing you that its reputation, at least as a “rogue circuit” whose decisions are more likely to be reversed by SCOTUS, is not based in fact. It simply isn’t.

          I care more about reality than reputation.

          Gremlin1974 in reply to Awing1. | February 5, 2017 at 7:03 pm

          I can understand that, but that reputation is part of the reality the numbers aren’t the beginning and the end. As I said above the content and types of reversals that have contributed to the reputation.

          So I will correct myself, the ninth circus has the reputation of having the highest instance of significant and frankly blatantly unconstitutional decisions reversed.

          We can throw numbers back and forth all day, but the numbers are only the skin of the apple so to speak.

      Mac45 in reply to Awing1. | February 5, 2017 at 5:12 pm

      The 9th DCA has 2-3 times as many cases reviewed by the SCOTUS as the other DCAs, with the exception of the 5th DCA and it has almost twice the referrals as that court. And, it ranks 1st in the number of cases [by a factor of 2] and 4th in the percentage of cases reversed. The SCOTUS usually does not take a case which is easily affirmed unless two DCAs have contrasting rulings on the same subject. The other reason for the SCOTUS to hear a case is because the decision is controversial. So, apparently the 9th has a lot of contrasting decisions or it has a lot of controversial decisions. Take your pick. Either way, that is why it has a reputation for making controversial decisions.

        Awing1 in reply to Mac45. | February 5, 2017 at 6:28 pm

        It has the most cases taken by SCOTUS because it has the most cases seen by a significant margin. Here’s the number of cases terminated between 2011 and 2014 (the most likely to be seen in SCOTUS OT12-OT15) by circuit:

        CADC 4,438
        CA01 6,006
        CA02 22,144
        CA03 16,137
        CA04 20,323
        CA05 30,135
        CA06 20,684
        CA07 12,323
        CA08 11,788
        CA09 51,657
        CA10 8,863
        CA11 25,666

        The Ninth Circuit has the most by far. I have yet to see a legitimate argument in defense of the proposition that decisions of the Ninth Circuit are more likely to be overturned than any other circuit. Having the most, as a raw number, is meaningless. They have the most affirmed decisions as well. Using that logic, decisions of the Ninth Circuit are both more likely to be overturned *and* more likely to be affirmed. It doesn’t make any sense. You have to use rates, and every defensible measure of rates shows their decisions are not the most likely to be overturned, much less “by a wide margin”.

          Gremlin1974 in reply to Awing1. | February 5, 2017 at 6:56 pm

          Having the most “As a raw number” is only meaningless to those who wish to to be meaningless. Reputations given to organizations are generally earned and for the most part contain a fair amount of truth.

          Also, the numbers are only part of the story. The content and scope of the reversals also matter and I would put forth that it is these factors that have given the court its reputation more so than raw numbers.

          Awing1 in reply to Awing1. | February 5, 2017 at 7:29 pm

          I don’t know how to explain this more simply. If we follow your logic of having the most as a raw number is meaningful, then we must also say that the Ninth Circuit is the best, because they have the most number of cases affirmed by SCOTUS, and indeed, the most number where SCOTUS decides not to review their decision.

          That’s what your logic results in. That it’s meaningful that they have the most affirmed cases, and the most where SCOTUS doesn’t review.

      Gremlin1974 in reply to Awing1. | February 5, 2017 at 6:09 pm

      So let me get this straight, what you are saying is and what your chart proves is that yes they do have the most cases reversed 41 vs 23 being the next in line. Your; “but but if you break it down” argument is typical liberal BS excuse making.

      The fact of the matter is that the 9th circus is the laughing stock of all the circuit courts and is seen as a joke inside the system. Not only are they the most overturned they also have the most significant decisions with national implications overturned.

      The 9th circus has the most cases overturned per active judge at a rate of 1.41% (using your chart which I have neither the time nor inclination to check for accuracy) than the next closest court which is the 5th circuit at 1.35%! (See I can use evasive BS statistics to try and prove my point as well!)

        How the heck is comparing it to the number of cases actually taken “BS”? If you don’t, and you stay with your indefensible “highest number of”, you’re also stuck with the conclusion that they’re right the most often, since they have more decisions affirmed than any other circuit. Using the measure of “highest number of” is meaningless when the number of cases seen by each court is so vastly different. I also did the calculation on the basis of reversals per total decisions of the court in the year prior, and over the four years (circuit decisions in 2011-2014 to SCOTUS terms OT12-OT15) they again do not come out anywhere near the top. In order from highest rate of reversal to lowest:

        Circuit Reversal Rate
        CADC 0.158%
        CA08 0.110%
        CA10 0.090%
        CA06 0.087%
        CA01 0.083%
        CA09 0.079%
        CA05 0.076%
        CA03 0.074%
        CA11 0.062%
        CA02 0.050%
        CA04 0.049%
        CA07 0.041%

        You have yet to provide even a smidgen of evidence that a decision from the Ninth Circuit is more likely to be overturned by SCOTUS than any other circuit. Propose a *defensible* measure, that doesn’t result in contradictions like they’re the most likely to be overturned *and* the most likely to be affirmed, or admit you were just trying to sell BS.

News reports say visa holders are rushing to enter before the fuller court hearing tomorrow. I have no confidence in the 9th Circuit.

Can’t Trump simply tell the State Department to cease issuing any more visas to people from these countries? (With exceptions for the translators as recommended by Defense.)

When I first read about the TRO and then the emergency stay, I thought it was bad timing because the Court would probably be closed, and things would wait until Monday… Of course, that was supposed to be wrong(/s)..because I had no idea how any of that actually worked in real life. To people unfamiliar with these procedures this is upsetting.

So, I wondered why Washington state. Now I know. Forum shopping. They knew the 9th Circuit Court of Appeals.

    Wisewerds in reply to CloseTheFed. | February 5, 2017 at 10:16 am

    Actually, this is all about lefty politician Washington State Attorney General Robert Ferguson making a name for himself “by any means necessary” so he can climb the political ladder. His next stop is about 8 years as Washington State governor, where he will constantly be taking provocative actions to get his name mentioned by the national media, after which you will see him running for President. Think Bill Clinton, but without the vices.

Professor: Thanks for this timely update.

If the issue is discrimination, could Trump simply close the border entirely?

There should be many ways the Executive can slow the flood of potential terrorists into the country. In principle, the President could pursue more than one way at a time, and issue EOs faster than a court can second-guess them.

He’d need a sizable legal staff to research and draft suitable orders reasonably quickly, but if there’s one thing Washington doesn’t lack, it’s lawyers.

    Ragspierre in reply to tom swift. | February 5, 2017 at 9:25 am

    As I pointed out when this whole fiasco started, “You can do a right thing the wrong way”.

    As here.

    If Jeff Sessions is to be taken at his word…and I think he is…he was never part of this in any meaningful way. THAT would be one major unforced error, right there.

    He didn’t have to be imbued with any office to consult.

    The advocacy here among so many for a strong-man to defeat the operations of our government on matters that the advocates support (or think they do) is EXACTLY like the Obamic over-reach we all PRETENDED to deplore on principle.

      VaGentleman in reply to Ragspierre. | February 5, 2017 at 10:57 am

      Please explain why you think Sessions involvement would have been a plus. Anything Sessions would have brought to the discussion has to be weighed against any negatives his involvement could have. This EO was always going to be controversial, and the dems were always going to play the race card. Involving Sessions would have made his confirmation much harder since they would say his advice on the EO proved the race charges they made against him were valid. What would he bring that would offset that?

      Your last sentence seems to be parroting the dem line that Trump supporters are all nascent fascists and Trumps is a wanna be dictator. Is that your position?

        Ragspierre in reply to VaGentleman. | February 5, 2017 at 11:13 am

        I expect that Sessions would have counseled a little patience and intelligence in formulating a durable EO. He would have had some legal expertise to bring to the table, which I very much consider lacking in the hot-to-trot Bannon style I read here.

        As some have stated up-thread, a very sensible step in this whole direction would have been a directive to embassies world-wide, but in the targeted countries especially, to put a choke on visas and look carefully at each application.

        You can take your trolling bullshit and stick it. My last sentence says exactly what I meant, and it has nothing to do with your lying insinuation.

        gospace in reply to VaGentleman. | February 5, 2017 at 4:27 pm

        Of course they’re going to play the race card, it’s the only one they have. And, of course, islam isn’t a race.

“. . . the briefing schedule provides two more days in which people who otherwise would not be allowed to enter the U.S. can enter.”

What a way for DJT to have been proven right. What if, 2 or 3 years from now, another Muslim murderous terror attack occurs, and the Muslim/s responsible turn out to have been admitted during this particular time period.

And the judges responsible for creating this time period? The really good news for them – they have Absolute Immunity from ANY adverse consequence flowing from their fecklessness.

    MarkJ in reply to pfg. | February 5, 2017 at 9:13 am

    “And the judges responsible for creating this time period? The really good news for them – they have Absolute Immunity from ANY adverse consequence flowing from their fecklessness.”

    I’m not so sure about that. God Forbid, if or when an attack of the kind you describe occurs, the judges responsible for letting in the attackers will henceforth be issuing trying to hide from angry mobs in the legal equivalents of “priest holes”.

Blaise MacLean | February 5, 2017 at 9:54 am

Since, as I understand it, Congress has the jurisdiction to create Federal courts and/or define their jurisdictions, perhaps the time has come to re-draw the boundaries and jurisdiction of the 9th circuit. My suggestion would be that its boundaries be re-drawn to be about 4 square acres in eastern Oregon, and to restrict its jurisdiction to causes arising within that area. Perhaps it will have a surplus of judicial “talent” for the moment but time and attrition should take care of that problem. Some might say it would be expensive to maintain an entire circuit Court with so few cases (with luck, none) but given the overall amount of government waste perhaps the benefit to the overall rule of law would make the cost worth it.

I note the order denying the emergency stay is only issued in the name of two judges. I wonder if this means the third member of the panel was in favor of immediately dissolving the stay?

    Wisewerds in reply to Wisewerds. | February 5, 2017 at 10:25 am

    Canby is an 85 year old male Carter appointee from Arizona with a military background who has been on the Court for ages. Friedland is a 44 year female corporate lawyer Obama appointee from California who has been on the Court about 3 years. I don’t know who the third member of the panel is.

    Wisewerds in reply to Wisewerds. | February 5, 2017 at 10:32 am

    By the way, I would like to thank the Professor again for his excellent work in getting this order posted, linked to, and analyzed so quickly!

    Marco100 in reply to Wisewerds. | February 5, 2017 at 10:49 am

    No, the appellate panel didn’t make a ruling because Robart’s ruling is so outlandish that they’re not sure how to reverse him without horribly humiliating him, which they may not want to do for political reasons.

I think the bigger issue is that this is a an extension of the lawlessness Obama ushered in. He ignored or abused whatever laws he wanted, and his worshipers are simply following his lead. Congress and the judicial system showed no interest in checking his abuses, so this is what we get. I expect more lawlessness in the name of dissent and free speech for the immediate future.

    Ragspierre in reply to windbag. | February 5, 2017 at 10:40 am

    “Congress and the judicial system showed no interest in checking his abuses, so this is what we get.”

    That’s patently false, and you should know better. Such a false assertion denigrates the work of thousands of people, and the facts.

    Obama was remarkable for his record in the courts of the US, including several unanimous Supreme Court decisions reversing his actions.

Although Robart’s opinion is pure trash from a legal reasoning perspective, if it’s not overturned, it actually is a very pro-“States’ Rights” opinion. Extremely ironic, an unintended consequence of his obscene judicial activism. What Robart is saying is that the interests of individual States “trump” (LOL) the exercise of the authority of the President and of the interests of the federal government with respect to a clearly federal responsibility, immigration matters. I guess Robart never heard of the Supremacy Clause.

So I guess this means the next time some conservative litigant opposes some federal action in Robart’s court, on the basis that the conservative litigant’s rights are being violated by the federal action, Robart will say “Of course you are absolutely right, conservative person! TRO GRANTED!!!!”


This could actually be beneficial for the Trump administration. While many are looking at this as a glass half empty, it could be a glass half full.

The knee jerk reaction to the EO justifies further immigration action down the road, if, as I expect, the courts eventually decide that the President’s order was lawful. See, just because a person enters this country does not mean that their visa can not be revoked. Once the EO is found to be lawful, then the government is free to locate and detain all the visa holders who entered the country while the TRO was in force. Their visas can be revoked and they can be subject to a deportation hearing or, possibly, only an expulsion hearing. And, the round-up of these individuals would justify expanding ICE to get the job done. Of course, once the payroll is increased for this operation, additional work has to found for the new hires, such as tracking down other illegal aliens.

Tactically, it would have been better for the pro-immigration/anti-Trump forces to wait for the 90 days and see exactly what the Trump administration did. If the only result was to increase the vetting then they have lost nothing. If the ban is extended or broadened, then the potential grounds, for having it repealed, are strengthened. I think that the opposition forces may have shot themselves in the foot on this issue. Timing is everything.

Trump did it right, fool.

And the media are, literally, flooding the zone with bullshit on this. Thinking they are smart, they appear to have adopted Trump’s BITCS tactics but I don’t think they understand what the effect will be. The Journolist is larger & more tightly connected than ever and the more BS they spew, the less anyone outside the list pays any attention.

Initially, after hearing what the 9th did, I though well, just rescind the EO and either craft another one or just order State not to issue Visas. But now it has turned into a judicial FUBAR. A specious ruling + politics. Trump can’t get Sessions into position until he votes on Davos. He can’t plan on relief at the SCOTUS, and if stay not issued there, it would be a seemingly political defeat but he will have tried and defined his political enemies, therefore reaffirming to the base that the system is broken and the opposition just wants to flood the country regardless of threat.
Also rationale to split the 9th emboldened and crack down on Visa enforcement. You learn from set-backs and Trump has written about this and I know he is 4 steps ahead already. So , this will be looked back on , either via States Rights or something else, but this overreaction by the left and media will be a blessing in disguise.

Why can’t DoJ file motions in each othe4r district to stay the TRO in their districts?

Make all the people come in to the Ninth.

    Ragspierre in reply to RodFC. | February 5, 2017 at 3:21 pm

    Because the Federal judiciary is not irrational (though some decisions are).

    The system won’t let people kludge it up with cheap stunts.

Thomas Jefferson warned of judicial tyranny, which we have been living under. For example, a federal judge recently ordered this to a civil litigant before illegally confiscating his property:

“You are a fool, a fool, a fool, a fool to screw with a federal judge, and if you don’t understand that, I can make you understand it … I have the full force of the Navy, Army, Marines and Navy behind me,”

    Gremlin1974 in reply to mthomps. | February 5, 2017 at 7:17 pm

    Wow, just, Wow. Why was this never sent to SCOTUS is my first question. Why wasn’t this in every newspaper and media outlet.

Professor, four of the liberal four justices on the Supreme Court are total hacks.

What’s to stop those four from issuing an opinion “the text of the Constitution doesn’t apply because of something Trump said on his personal twitter account?”

That result would allow the lower court to stand and would prevent the executive branch from performing an executive branch function (until the Democrats finally win an election of course).

PonyBobHaslam | February 5, 2017 at 7:28 pm

The 9th cesspool is the first swamp to drain.