Posted on 02/14/2017 3:48:02 PM PST by SeekAndFind
At least one judge on the Ninth Circuit has requested reconsideration in the matter of State of Washington and Minnesota v. President Trump. The Ninth Circuit chief judge issued an order Friday stating that an unnamed judge among the 29 active members of the circuit court has requested an en banc hearing — meaning that eleven judges or possibly the entire panel would hear the case, rather than the select three-judge panel that issued the 3-0 ruling against Trump’s executive order.
Procedurally, any judge on the circuit court may sua sponte — on the judge’s own initiative without a party asking or moving the court through any written pleadings — request a reconsideration before a fuller bench, rather than the select panel.
The Ninth Circuit’s en banc proceedings typically only consist of eleven judges, as the controlling federal law allows that for circuits with more than 15 judges to limit en banc hearings to “such number of members of its en banc courts as may be prescribed by rule of the court of appeals.” Currently, per the Ninth Circuit’s Rule 35-3, eleven judges sit for a “limited en banc court,” which usually include the chief judge. Parties may suggest or request a hearing before the whole panel of 29 judges; however, the Ninth Circuit has never granted an en banc hearing before the entire panel.
The court’s February 10 order requires the parties to file briefs by 11:00 a.m. Pacific time on Thursday, February 16, arguing their respective positions only on whether the matter should be reconsidered before the fuller panel. Importantly, amicus (or “friend of the court”) briefs may also be filed by interested organizations on either side, seeking to advise the court whether or not to grant a rehearing.
En banc proceedings are not typical, but usually occur in cases that are considered extremely important because of the parties, the precedent value, or because they are particularly noteworthy. This case is particularly suited for a fuller panel review because of the serious issue and extreme importance to the country.
After the briefs are filed Thursday, the members of the court will vote on whether the matter should be reconsidered, and if a majority of the active judges vote to rehear the matter, then President Trump may get another day in court.
This type of reconsideration will be critically important to Trump, especially because his newly confirmed attorney general, Jeff Sessions, and his deputies will be able to navigate the case and argue on behalf of the executive order’s constitutionality. A rehearing presents a very good opportunity for Trump to essentially test his case before a fuller panel that doesn’t carry the same weight as a Supreme Court decision, particularly when the High Court still consists of only eight justices.
If Trump wins with an en banc ruling, it will be a significant victory for the executive administration and will be valuable to the Ninth Circuit’s weakening reputation for legitimacy and fairness. If he loses, it may provide more grounding to simply redraft the executive order and cure the supposed constitutional problems.
— Jenna Ellis is a constitutional-law and criminal-defense attorney, a law professor at Colorado Christian University, where she directs the legal-studies program, a fellow at the Centennial Institute, and the author of The Legal Basis for a Moral Constitution.
I smell a rat! The whole court will probably rule the same as the 3 judges of the same court. This would be political optics to stick it to Trump.
Would allow more time. Would possibly allow Trump to seat Gorsuch.
Then...
the decision was a bad joke... cited false data not even in the record.... and never cited or discussed the central controlling statute giving the President of the USA the authority (duty) to bar entry of any and all groups of people he deems pose a risk to America, etc.
not to even mention the President’s US Constitutional authority for national security and border enforcement
every second year law student can see just how AMAZINGLY DEFECTIVE is the 9th Circult panel’s order.... DJT needs to issue a new EO within his proper functions (like the old one, only broader as to countries of origin and duration of ban)...and refuse to submit it to judicial review.
At this point, someone close to the administration should be making noise about impeachment of judge who knowingly violate their oaths of office...
If congress re-configures the 9th, with DJT installing conservative judges to nullify the Leftists that control it, he can carry on nearly unimpeded by judicial tyranny.
All they want to do is provide cover for a possible Jihadi attack.
This court needs to be stripped down to size, and another court setup t take states like AZ, CO, UT, MT, etc
defective/unconstitutional orders like the one being dicussed are the exact reason why so many Americans no longer have any respect for the judiciary (especially the 9th circuit)
the court discredits itself, big-time, issuing orders it has no jurisdiction to issue...... and by using false facts not even in the record.... and then totally ignoring the controlling law
The 3 judge panel made a huge mistake when they failed to even consider the law that authorizes the president to ban ANYONE he considers a threat to the security of the country.
But maybe they will since they have the record for most overturned decisions. Will look better the Supreme Court kicking their butt again.
So what happens if they throw a hearing and one side does not attend? Can the judges reverse the original decision, based on nothing but the law and common sense? Seems unthinkable.....
Some of the other, smarter (if possible) justices of the 9th circuit know two things: 1) the decision was flat out wrong as title 8 USC 1182 says POTUS has that authority, and 2) if terrorists came in after that decision, they own anything that happens.
Do you know the breakdown of the judges?
It’s worth a shot and in the meantime we get our SC pick to the bench.
With all this stalling what if we, our side, had the same case pushed through in other areas that would be fair? Have someone with standing come out against his ban where we know they will fail because it absolutely should. Can someone do this and it not be considered fraudulent?
“The 3 judge panel made a huge mistake when they failed to even consider the law that authorizes the president to ban ANYONE he considers a threat to the security of the country.”
They ruled on the banning of legal residents.
Last week when Japan PM was here Trump said he’d handle this problem of vetting early this week. I haven’t heard a peep . Thought there’d be another EO or something by now. In the meantime in they come. This Flynn thing has been distracting I guess.
The 9th Circus is looking for a way out the corner it painted itself. Trump’s DOJ shouldn’t request or decline an en banc hearing. Don’t file a brief at all. The court knows it is on the wrong side of the Constitution and statute.
Not citing the law, a given, but the ruling does not have a name as the author of the opinion.
Trump does not need an EO to reduce the number of refugees allowed into the country. Probably cut off first part of March.
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