A unanimous panel of Ninth Circuit judges has just refused to reinstate President Trump’s executive order banning certain travel into the U.S. The ruling, though inconsistent with the law, will surprise few who know anything about the Ninth Circuit.
I’m sure we’ll discuss the merits once we have the opportunity to analyze the opinion. For now, let’s consider the administration’s legal options.
It could seek rehearing by the Ninth Circuit en banc. Unlike with most appeals courts, if granted a rehearing apparently would not involve all of the judges — just ten of them, I’m told, including the three who ruled on the matter. That’s because the Ninth Circuit has nearly 30 judges. (Republicans should consider legislation to break it up.)
Seeking en banc review seems like a waste of time. The panel’s ruling almost certainly will stand in the bastion of left-liberalism that is the Ninth Circuit.
Another option is to seek review by the Supreme Court. Currently, there are only eight Justices and four of them are liberal. A fifth, Justice Kennedy, is centrist. Even if he supports the administration, it would take another vote to reverse the Ninth Circuit.
Nonetheless, I would like to see the administration take this case directly to the Supreme Court. The law so clearly favors the administration that a win isn’t out of the question.
In any event, let’s have the Supreme Court speak. If it doesn’t overturn the Ninth Circuit, it can share responsibility in the event of a terrorist act the travel ban might have prevented.
Regardless of whether the injunction against the administration is lifted, the case is headed back to the courtroom of the strange judge in Washington State for a decision on the merits. That decision can be appealed. By the time this appeal makes its way to the Supreme Court, perhaps Judge Gorsuch will be on that bench, thus improving the administration’s chances of success.
Would a loss in the Supreme Court on a appeal now hurt the administration’s chances later? I don’t think so. A 4-4 ruling would have no impact later. And if the administration loses 5-3 because it can’t get Kennedy’s vote, it probably will lose 5-4 later.
So my initial take is that the administration should take this to the Supreme Court straight away.
UPDATE: Here is the panel’s opinion.
SECOND UPDATE: Now that I have had time to analyze the opinion and read what others have said, I’m less convinced that the government should take this matter to the Supreme Court in its present posture.