by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
I wrote last week about State of Washington v. Trump, the case in which the Trump administration is defending an executive order temporarily blocking US entry by aliens from certain countries. In that previous post I complained that this legal dispute over a temporary restraining order on a temporary entry ban on aliens from small number of deeply disfunctional countries had “already consumed a great deal of time, money, and judicial resources,” and I predicted that, “Before it’s over it will consume a great deal more.”
That prediction is already coming true. Last Thursday a panel of three 9th Circuit judges denied the Government’s request to lift the TRO. The Court’s written opinion received a lot of criticism, and not just from the right. In a Washington Post piece, Eugene Kontorovich called it “dangerous and unprecedented.” At the Hoover Institution blog, Michael McConnell described it as “flawed.” And even the New Yorker’s Jeffrey Toobin admited that, “there are several vulnerabilities in the Ninth Circuit opinion that may help the Trump Administration pull this case out in the end.”
Evidently at least one 9th Circuit judge agreed with the critics. Without waiting to see what action the government would take in response to the ruling, on Friday the Court announced that:
A judge on this Court has made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel on February 9, 2017, should be reconsidered en banc. A sua sponte en banc call having been made, the parties are instructed to file simultaneous briefs setting forth their respective positions on whether this matter should be reconsidered en banc. The briefs should be filed on or before 11:00 a.m., Pacific time, on Thursday, February 16.
For an appeal court to order such a “do over” on it’s own initiative is highly unusual, and suggests that, even at the notoriously liberal 9th Circuit, cooler heads may prevail in the end. Unfortunately, it will take quite a few more briefs, quite a few more hearings, and quite a lot more judicial deliberation before we know for sure.
Update, added 2/15/17:
Rather than let this legal tempest spin itself out, PresidentTrump has used his twitter feed to add emotional energy to the storm and generally stir things up. When Judge James Robart imposed the TRO in federal district court, he tweeted:
THE OPINION OF THIS SO-CALLED JUDGE, WHICH ESSENTIALLY TAKES LAW-ENFORCEMENT AWAY FROM OUR COUNTRY, IS RIDICULOUS AND WILL BE OVERTURNED!
And when the 9th Circuit panel refused to lift the order, he tweeted:
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
It’s not too surprising, therefore, that on Tuesday, when the administration requested a postponement of proceedings in Robart’s court pending resolution at the Court of Appeals, Robart denied the request, adding that he was “a little surprised” by it given that “the President said he wanted ‘to see you in court.'” This sort of tit-for-tat is amusing, I guess, but it means even more briefs, more hearings, and more judicial deliberation in the coming days.