Will the 4th Circuit Go With 15 Judges Instead of 3 When it Reviews Trump’s Travel Ban?
President Donald Trump’s two executive orders known as the travel ban and, in the case of its carefully-tweaked successor, the revised travel ban, have been the subject of much controversy, intense scrutiny, and a growing pile of legal challenges across the nation.
When it comes to appellate review of the travel ban, most of the attention thus far has been on the 9th Circuit Court of Appeals.
But it is possible that some interesting procedural machinations at the 4th Circuit could also yield a ruling about the executive order’s constitutionality that could have, in certain ways, a broader effect than anything the 9th does.
Specifically, the 4th Circuit will hear a, as yet unscheduled, challenge to a mid-March decision by Mariland-based U.S. District Judge Theodore D. Chuang who ruled to block a crucial portion of the second travel ban, which puts a temporary halt on travel from six predominantly Muslim counties, unless the would-be travelers are U.S. citizens or have visas. In his ruling, Chuang also questioned the order’s Constitutionality.
“The history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban,” Chuang wrote.
The Trump administration quickly challenged the ruling. In response, last week the 4th Circuit asked for and received briefs from both the parties arguing “on the appropriateness of an initial en banc review.”
This is unusual and potentially a big deal.
With rare exceptions, in the 4th a case is reviewed by a three-judge panel (as was the case of last year’s review of the first travel ban at the 9th Circuit). Once the three judges rule, either party may request an en banc review—meaning, in the case of the 4th Circuit, fifteen justices—a request that the court may or may not grant.
In most instances, the court does not grant the request and it is the three-judge panel that makes the final decision at the 4th, with only 0 to 4 cases a year heard en banc, according to Derek Stikeleather writing for the Maryland Appellate Blog.
Thus the fact that the court is considering going straight to an en banc review, without a prior panel decision, is, according to Stikeleather, “an extremely unusual procedural posture,” which suggests how seriously the court is taking this case.
Naturally, both sides of this appellate question think that bypassing a 3-judge panel and going straight to the fifteen judges of en banc is a swell idea.
And Back to the 9th in May to Review Hawaiian Judge’s Ruling
Meanwhile, this past Friday, lawyers for the U.S. Justice Department filed an appeal with the 9th Circuit to correct what government lawyers called the “flawed” judicial analysis of last month’s ruling delivered by U.S. District Judge Derrick Watson, who found that Hawaii was likely to face “irreparable injury” if the ban were to be enforced, while the state’s challenge to its constitutionality was pending.
This means two upcoming high profile appellate court battles over Trump’s temporary ban.
The mid-March ruling by Judge Watson of the Federal District Court in Honolulu, has engendered the most controversy of the various post executive orders rulings, after the judge repeatedly mentioned Mr. Trump’s own public comments during and after his presidential campaign, which Watson wrote caused a “reasonable, objective observer” to view even the new order as “issued with a purpose to disfavor a particular religion, in spite of its stated, religiously neutral purpose.”
A panel of three 9th Circuit judges is scheduled to hear arguments on May 15 in Seattle before Justices Barry G. Silverman, a Clinton appointee, M. Margaret McKeown, also appointed by Clinton, and Andrew D. Hurwitz, a 2012 Obama selection.