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Unidentified 9th Circuit Judge seeks vote on further review of panel Order

Unidentified 9th Circuit Judge seeks vote on further review of panel Order

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.


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Could Trump write a new, more limited, order, and continue to appeal the other one? That seems like it would be the best option for our national security, so we don’t have to wait for the court process.

    This could be done. However, my personal opinion is that this would be counter productive for the President.

    The EO, as written, is fine, on its face. To rewrite it would acknowledge that it was flawed to begin with and it would still not answer the question of whether 8 US 1182(f) means what it says when it gives the President the sole authority to determine that a group of people may present a potential threat to the US, regardless of their religion, race, gender or national origin, and ban or control the entry of members of that group from entry into the country.

    The courts have created this quagmire, for themselves, by basing a legal decision on political ideology rather than on the law. Let them dig themselves out. That the 9th CA is actually considering an En Banc session, without it being requested by either of the litigants, is a pretty good indication that the current decision, of both Judge Robart and the 9th CA are horribly flawed. It will be interesting to see if the Court offers any explanation for this action and, if so, what it will be.

      C. Lashown in reply to Mac45. | February 10, 2017 at 10:53 pm

      Thanks for the explanation.

      alaskabob in reply to Mac45. | February 10, 2017 at 11:26 pm

      Another option…. Recognizing the 9th could be broken up and power lost…this could be an attempt to assuage the political opposition to not pull the power plug. It could be an attempt to save their power.

        If true, that’s even more disgusting than the ruling.

          notamemberofanyorganizedpolicital in reply to Paul. | February 11, 2017 at 12:31 pm

          Break them up then.

          Even the citizens of California – outside LA and SF – would not mind being broken off into a new state(s), from what I’ve read over the past years.

        That was my first thought too. By now, it should be dawning on some of those kool-aid drinkers that the political winds have reversed and are finally feeling the passion and heat behind this.

        This ruling just might be the case that tips the scales in a big way in convincing most Americans that judges have usurped for themselves absolute power. Do they really believe that they will get away with it like cheating in Monopoly?

        Our founding fathers intended the Judiciary Branch to be the weakest of the three branches of government and there was good reason. It’s time to clean house. Let it begin here. Great case to rally behind.

        dystopia in reply to alaskabob. | February 11, 2017 at 6:29 pm

        It is time for the 9th Circuit to go — and the reasons are not just political but practical.

        The 9th Circuit covers 40% of the land mass of the United States and 8 States. However, it is a creation of Congress. I suggest that Congress carve that area into 9 separate Circuit Courts — 2 for California and one for each other State. The 9th Circuit should be relocated to Barrow Alaska and given jurisdiction over controversies arising in the State of Alaska.

      exsanguine in reply to Mac45. | February 12, 2017 at 12:20 am

      If Trump wanted to truly play “dirty” he could rewrite the EO to stop ALL immigration for said time. period.

The mystery judge has to be Alex Kozinski.

It encourages me that a judge was responsible enough to request a vote. At least someone on that circuit appreciates the gravity of the situation.

notamemberofanyorganizedpolicital | February 10, 2017 at 9:08 pm

Thanks Professor Jacobson.

Is it possible that some judge from the 9th circuit was so embarrassed by the 3 judge decision that he wants to try to regain some credibility for the 9th circuit? From the makeup of the court that seems like a failed endeavor.

    DaveGinOly in reply to FarFromIt. | February 10, 2017 at 9:36 pm

    Unless he knows something of the disposition of other 9th Circuit judges on this matter, he would just as likely be opening the door for the court to further beclown itself, rather than redeem itself.

I’m still confused. If the President doesn’t have the power to do this (for reasons many may not agree with), who in the constitution does? I’m pretty sure the founders did NOT intend it to be the judiciary.

After 8 years of a POTUS flagrantly breaking the law or at best not enforcing the law, are there any laws left or has the office been reduced to smashing elementary school bakes sales and apologizing to foreign aggressors?

    I imagine the real result would be, “No one.” No one may bar entry for groups of people, only individuals, and these must have access to long court cases to defend their court-granted rights.

    I fail to see how this is taking authority over border control away from “just” the President. I’m not hearing anything suggesting the expanded TRO envisions the courts standing aside if Congress was to legislate Trump’s actions into law.

      In the order, the 9th has intimated that as-yet unidentified non-citizens in the 7 countries covered by the EO, who do not have visas but may wish to matriculate to a Washington or Minnesota university, may have due process rights. Apparently.

      Has something constitutionally changed since FDR blocked immigration from areas in Europe?

      The atrocities of which included Anne Frank. As horrifying as that outcome was, FDR was right both morally and constitutionally in erring on the safety of our country.

      Lastly (and I keep repeating this) we will not resolve the horrors of the third world by importing them to our soil.

      SoCA Conservative Mom in reply to JBourque. | February 11, 2017 at 7:23 pm

      Immigration and Nationality Act of 1952, which states:

      “Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

1. 6 hour drive? Bet you look forward to the days of auto-driving cars ( ps suggest audio books for the drive ).
2. Don’t eat at McDonalds. A Wendy’s spicy chicken and fries ( no salt ) is healthier then anything MCDonalds has to offer and tastier.

Trump should go to the mat on this. Even the liberal justices on SCOTUS will have to consider the consequences of denying the president this authority. It may be cool to this president of this authority now, but what happens when the president is a liberal and the situation may be even more dire? Do they want to tie that future president’s hands? I don’t think they would dare. It would be a very short-sighted thing to do.

    Here is what would happen.
    The lower courts would have to treat this as precedent until Gorsuch is seated and the SCOTUS hears another case based ion the precedent.
    Liberals really wouldn’t want to appeal, but conservatives would.

    The result is a precedent that the liberals have to live with, but conservative could overturn anytime they want.

    I don’t think they want that to happen.

    C. Lashown in reply to DaveGinOly. | February 10, 2017 at 10:59 pm

    The path our society is taking, a liberal POTUS would be fully accepted. Obama was the forerunner to that dilemma. I hate the blasphemous term ‘Chicago Jesus’, but it carries the persona really well.

Looking at that picture, one can’t help but reflect on the ugliness of Michelle Obama and look back at the 8 years of pain having her mugg and loud mouth be a part of our every day life.

I think an appeal to SCOTUS puts the liberal justices on very tenuous ground.

Let us assume that it gets appealed and they sit 8 for it.
Do the liberal justices vote to overturn the ban?

If not they have to live with the precedent until a conservative has an issue with the ruling, appeals and a 9 member SCOTUS overturns the “nonprecedent”.

Meanwhile, if a court makes a conservative leaning ruling based on the precedent the conservative leaning judges can just refuse the appeal. The liberal judges cannot accept the ruling because then they have to show how fickle they are by overturning their own precedent.

This results in a bad precedent that can be overturned by conservatives anytime after Gorsuch, but that liberals have to live with. Definitely a powerful tool.

OTOH the liberal justices can overturn the ruling. Kaboom
the DC and AC ( oh I just realised –AC/DC cute ) just look stupid.

A no-win situation for them.

I don’t like playing games lkike this with the court system, but if the dark side wants to play such games, then we should play them to win.

Now that AG Sessions is in office, has August E. Flentje been transferred to Guam yet? Having the District Court ask for proof of terrorists from the seven countries active in the USA and then not having an answer for the 9th Circus is incompetent at best.

This is one of those times where Ted Cruz’s exceptional mind and memory would do much to reduce the 9th Circus to babbling inanity. Are there legal restrictions prohibiting a sitting Senator from arguing on behalf of the executive branch in the 9th Circus? I would imagine that doing so might force self-recusal on related legislation, but it just might be worth it.

    Barry in reply to MSO. | February 11, 2017 at 12:27 am

    I’m sure Senator Cruz would do an exceptional job, but he’s not the only one that can.

    Nor do I think it mattered. The 9th doesn’t follow the law/constitution, as is clear here.

This appears to indicate that at least one Justice has taken offense at the ruling. This UN-identified has stepped forward, possibly to correct a grievous wrong. I’d like to see it.
If, indeed, this ruling can be reversed from within the 9th, it would certainly be the most elegant remedy.
Now, the issue is time.

The President should have the SOS round up every visa, imagination and refugee application Trans port them to the court for approval. If the judge wants to run the State Department make him run it.

So, if this UN-identified Justice is actually supporting the ruling and has made this request only to further delay a SCOTUS review…
Surely, the 9th is dead meat.
Well, that may kick them into the newly seated…

So I find myself thinking about the other possible option, that this goes to the Supreme Court and is upheld, or the Supreme Court declines to hear it.

It seems to me that that will leave the situation with the precedent that all noncitizens have some US Constitutional rights, but not all of them, without defining which rights they have and which rights they do not.

My suspicion is that the first major thing will be legal screwballery by the first major hostile or semi-hostile nation-state who figures out how to use it for lawfare. Or the first set of unscrupulous lawyers who figure out how to use it to ambulance chase on a global scale.

The next phase after a couple state legal systems collapse under the caseload will be some form of constitutional to clearly deliniate which rights which states of non-citizen bodies actually have.

I’m thinking at this stage, rather than worrying to much about whether or not the TRO gets lifted, we should be understanding the various ways the precedent the 9th Circuit’s ruling established could be abused by bad actors.

I figure some aspiring law student somewhere could at least get a couple of truly entertaining dissertations out of it.

This could be another liberal justice trying to draw the process out as long as possible. At least another week and a half.

Could the full 9th court quash the Washington state case?

I sure would like to see Professor Jacobson write a post about the possible legal precedents that may be set by this case.

IANAL, but I think this case has the potential to be the best thing that ever happened to “small government” types that hope to limit the power of the federal leviathan.

Consider that two states have been granted standing in a case where they have a very tenuous connection to the actual people affected by the EO. Further, the legal dispute is over an issue where the federal government has nearly complete discretion.

Now apply this new found standard to a draconian EPA ruling. Any freedom-loving state (e.g. Texas) could file suit against the actions of the federal government. An affected state would certainly have standing to challenge pollution rules, since that is within the purview of both the state governments and the federal government. The states would then have an excellent chance of winning their case, especially if the appeals go through some District Court other than the 9th.

Imagine the power granted to citizens of individual states to stop federal statutes. Citizens of the respective states would surely have rights at least equal to those of an Iranian national (as regards their ability to have their State bring a suit against the federal government on their behalf).

Is there a constitutional law expert on the Trump staff who can play 3-D chess? If so, then the executive may want to get this particular case all of the way to the Supreme Court. Win or lose, if we can get some degree of stare decisis to attach to this flimsy grant of standing, then there is the potential for the states to break the power of the federal government.

    At this point in time, it’s very difficult for me to imagine that courts would consider the rights of a U.S. citizen equal to the rights of an Iranian national. The preferences of Iranian nationals clearly hold precedence over the safety and security of U.S. citizens in the view of the 9th Circuit, and, likely enough, the current Supreme Court.

if the 9th District were split up what would happen to the present judges? Would they have to be reconfirmed or anything?

    Joe-dallas in reply to RodFC. | February 11, 2017 at 9:57 am

    No – procedure would be similar to the 1980’s split of the 5th into the 5th & the 11th

      gmac124 in reply to Joe-dallas. | February 11, 2017 at 1:20 pm

      I understand a normal split would follow what they did in 1980. Could congress follow a different procedure this time?

      If so could the dissolve the 9th circuit and after a period of time add new circuits to cover the territory? If they did this could they appoint all new judges or would they still have to use the old judges?

      If they can’t dissolve the 9th circuit could they shrink it to say just California with the current judges and add one or more circuits with all new judges?

        exsanguine in reply to gmac124. | February 12, 2017 at 12:28 am

        I believe the only Constitutionally required court is the Supreme court. Congress can disband/remove districts.

        Brief perusal through theories of this mention that COngress cannot control ‘what’ courts have jurisdiction over, nor compel them to take specific cases. But they do have the power to disband a district entirely.

          “I believe the only Constitutionally required court is the Supreme court. Congress can disband/remove districts. ”

          That is correct.

          Congress could simply dissolve the 9th and replace it with a new court and new judges…

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.

Chasing after unattributed rumors is counterproductive. Trump’s opponents release BaghdadBobisms to baffle and mislead the public, and the White House releases chaff to baffle and mislead the Democrats.

A request by a “mystery judge” raises the ante in the Art of the Unattributable Statement. But it still smells like smoke, and where there’s smoke, there’s a smoke screen. And not much else.

Watch out! It may be a trap.

Maybe that anonymous judge has started to wonder if they may be part of that swamp that Trump said he was going to drain.

Naw. He couldn’t be that good. Could he?

    Stingray in reply to roylofquist. | February 11, 2017 at 8:26 am

    This was my first thought too! I believe the “anonymous judge” likely sees the searing daylight exposure to his circus club, however the horse is already out of the barn . . .

    IMHO the best course is to take it to SCOTUS to document the 9th Circus as absolutely 100% political and willfully anti-Constitution. Congress’ corrective action should be swift and thorough thereafter.

    Congress needs to break judicial overreach while they still can (they still can, can’t they?).

9th Circuit ruling has unintended (?) consequence of educating the public about it’s liberal record and overturn rate. Like previous blunders or genius, this Trump EO (now coincidentally re-labeled the “travel ban” by all MSM after Muslim Ban polls released with majority favoring) has pushed the left into another extreme position. The Dems are now the party against safety and free speech. Never mind the pussy hat/vagina costume insanity.

What is the down side of letting this just play out? While the 9th Circuit debate rages, the administration implements tighter vetting procedures and, or simply follows current guidelines ignored by Obama admin, and the extremists are kept out under the radar?

Also ignored, for the most part, is Saudi “safe zone” commitment. No more real refugees, and a place to return them. Under all the flames and smoke from this opinion, I think the real refugee problem is already solved.

    If this was actually a trap set by the administration for the commie left and MS Propaganda machine then it has worked well as they are completely ensnared in a narrative they did not ever want to be in.

      notamemberofanyorganizedpolicital in reply to OldNuc. | February 11, 2017 at 12:43 pm

      Hey, Trump has been studying all parts of governments for 30 years plus now, imo…….

      Trump says he gets by on 3 or 4 hours of sleep a night, and that he reads voraciously – so a person can learn a heck of a lot in 30 years plus that way……

      notamemberofanyorganizedpolicital in reply to OldNuc. | February 11, 2017 at 12:46 pm

      So yes, I think it very well could be a trap OldNuc.

      Besides have you noticed how Trump loves to use the Uni-Party’s and MSM’s own words and actions against them?

notamemberofanyorganizedpolicital | February 11, 2017 at 5:52 pm

Very interesting.

“Kuwait already had its own Trump-esque visa ban in place for five Muslim-majority countries”

That was a good video to see. I won’t lie, Trump gives me a fair amount of anxiety with some of his tweets…. but this was a great video and shows him a bit more like I think he really is. Could be Melania. She seems to be a calming influence on him, maybe?