We’re now on day 36 without a 4th Circuit decision on Trump’s third travel order.

Unveiled as a presidential proclamation on September 24, 2017, the third travel order (we’ll call it EO-3) restricts entry by most nationals of Chad, Iran, Libya, Syria, and Yemen, as well as some nationals of North Korea and Venezuela.

Almost immediately after Trump issued EO-3, Hawaii and the International Refugee Assistance Project returned to the same judges in HI and MD who blocked the March travel ban (EO-2) and once again obtained nationwide injunctions. As a result, we now have parallel appeals in the 4th (full court, en banc) and 9th Circuits (panel of three judges).

The 4th Circuit’s extended delay is bizarre in light of the fact that on December 4, the Supreme Court stayed the injunctions and allowed the restrictions to take full effect during the appeals. At that time, the justices noted that they “expect[ed]” the 4th and 9th Circuits to rule with “appropriate dispatch.”

To its credit, the Ninth Circuit complied.

On December 22, just 16 days after hearing arguments, Judges Michael Daly Hawkins, Ronald Gould and Richard Paez re-adopted their May opinion against EO-2, and affirmed the Hawaii injunction on statutory grounds. Specifically, the panel held that EO-3, like EO-2, violated 8 U.S.C. §1152(a)(1)(A)’s prohibition on nationality-based immigrant visa discrimination, and that, additionally, Trump failed to make findings sufficient to “suspend the entry of all aliens or any class of aliens” under §1182(f).

Last week, the government filed for Supreme Court review of the 9th Circuit decison. Veteran SCOTUSblog reporter Lyle Denniston noted that the Justices are moving unusually quickly to consider the request which is now slated to be distributed at their January 19 conference. Law professor Josh Blackman said that he expects the Supreme Court to accept the case for review.

The Supreme Court clearly meant it when it urged “dispatch.”

Why the Delay?

So no one gets what’s taking the 4th Circuit so long. When the same 13 judges considered EO-2 seven months ago, they heard arguments on May 8 and entered a decision on May 25, just 17 days later. The majority opinion, four concurrences and three dissents spanned 194 pages.

I can think of a few theories for the holdup, but admittedly they’re just conjecture.

First, there could be disagreement on the merits within the 4th Circuit, with the judges reluctant to issue a split decision with no majority.

There is also the vanishingly small chance that the 4th Circuit is planning to uphold EO-3. This would require the three conservative judges—Niemeyer, Shedd and Agee—to flip four Democratic-appointed colleagues. It’s likely time-consuming to draft an opinion that can garner everyone’s support.

And as a theory of last resort, the delay could be intentional. The 4th Circuit might be withholding its judgment to stop the Justices from hearing the case before their summer recess, or just as a gesture of defiance, as a few people have suggested.

The non-cynical side of me would bet it’s just simple fracturing over why EO-3 must be struck down.

At least a few of the liberal judges on the 4th Circuit must know that the Establishment Clause claim is a loser at the Supreme Court. Peter Marguiles, a law professor who writes extensively about national security and strongly opposes EO-3, urged the challengers to quickly get behind the Ninth Circuit’s statutory argument.

Challengers of EO-3 will almost certainly need either Chief Justice John Roberts or Justice Anthony Kennedy. Neither seems likely to embrace the establishment clause claim…. Stressing the establishment clause crowds out the nuance that the statutory claim requires. It follows that challengers should resist the siren song of the establishment clause and focus on the statutory claim.

But some of the judges—Roger Gregory, James Wynn and Pamela Harris, at a minimum—appear deeply wedded to the Establishment Clause violation. Gregory wrote the May opinion, which asserted in a widely quoted passage that EO-2 “drips with religious intolerance, animus and discrimination.” Wynn has repeatedly invoked Korematsu in the context of the case. At oral arguments on December 8, Harris asked about President Trump’s retweets of videos that purported to show Muslims committing violence. She also expressed skepticism that a worldwide DHS review could cure EO-3 of the “taint” of Trump’s thoughts.

Given this, it seems possible that there’s something like a 5-5-3 split: 5 judges want to affirm on Establishment Clause grounds again, 5 want to adopt the statutory argument, and the 3 conservatives would again reverse and uphold EO-3. Or maybe something like 4-4-5, where a few Democrats see the writing on the wall and are willing to uphold EO-3.

In sum, if no one position appeals to 7 of 13 judges, then there is no majority opinion and the precedential value of the case is diminished. As such, the judges could be trying to strike an agreement and avoid what would be, from their perspective, a sub-optimal outcome.

Appears Intentional, Whether It Is or Not

Whatever may be going on behind the scenes, if the 4th Circuit simply recycles its opinion from May, it will certainly look like the court stalled intentionally. How could it have taken them twice as long as before to produce essentially the same opinion?

While they could uphold the ban and take their time writing a narrow opinion, this seems like a stretch given the history here. In May, every single Democratic-appointed judge agreed that EO-2 violated the Establishment Clause. To uphold EO-3, four Democrats need to change their votes.

During oral arguments on December 8, the only Democratic judge who even entertained that EO-3 was different from EO-2 was Barbara Keenan. She seemed to stipulate that EO-3 was based on a worldwide review by DHS, and that the ACLU was arguing that Trump’s national security judgment was incorrect or illogical—a proposition for which she had little sympathy.

But at other times, she suggested she’d still vote to invalidate EO-3. William Traxler, a conservative Clinton appointee, was quiet at oral arguments, but it’s quite possible that he too now believes that EO-3 no longer violates the Establishment Clause.

Even if Keenan and Traxler somehow flipped, the government still needs two more votes, and I don’t see who would supply them.

As a sign of just how far this circuit has gone, Wynn expressed bewilderment that he was being asked to decide the case on the basis of immigration statutes and the text of EO-3 instead of his assessment of President Trump’s thoughts on Islam. “Do we just ignore reality and look at the legality to determine how to handle this case?” he inquired of the government’s lawyer.

As is probably apparent, the judges on this court really, really, really don’t like Trump and the travel ban in particular. But it’s still tough to see why they would ignore the Supreme Court’s commands or want people to think they did. Not much benefit to them from doing so.

Running Out the SCOTUS Clock?

Steven Mazie, SCOTUS reporter at the Economist, theorized that maybe the 4th Circuit is trying to end-run the Supreme Court and block the ban over the summer.

The Daily Caller’s Supreme Court reporter, Kevin Daley, also suggested that the delay is a strategic ploy.

If the 4th Circuit waits just a few more months — or perhaps just weeks — to issue an opinion blocking the travel ban on establishment clause grounds, it’s quite possible the policy will be stalled for many months, since the Supreme Court will not have an opportunity to review the ruling until October, if not later.

Blackman tweeted:

Conclusion

I’m a bit skeptical of these theories. The Supreme Court order from December stayed the Maryland injunction pending “disposition of the Government’s petition for a writ of certiorari.” By that language, even if the 4th Circuit manages to thwart SCOTUS review before the summer, the travel restrictions should remain in effect until the justices act on the case. In any case, Roberts and Kennedy would quickly swat down any efforts to circumvent their decision. So I think it’s mistaken to worry that the 4th Circuit can bypass SCOTUS. The wording of the stay should foreclose that possibility.

The 4th Circuit may very well rule early next week and put the matter to rest. But it’s a sign of the times that people can’t even be certain that the judiciary hasn’t been driven rogue by Trump-induced madness.