This week three judges of the 9th Circuit Court unanimously decided to uphold a previous decision to put a stay on President Trump’s travel ban order, upholding an order by a Seattle judge who decided the ban was outside of the authority of the executive branch.
Only three of the judges on the 9th Circuit heard the appeal and refused to reinstate it, despite the law giving Trump authority and past precedent giving the executive branch clear power to regulate immigration for the sake of national security.
Now, one of the 9th Circuit judges has submitted a request for Trump’s appeal to be heard by a full court of 11 justices, although his or her name has not been released, indicating at least one of them may feel that the incorrect ruling was made.
THOMAS, Chief Judge and En Banc Coordinator: 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. The supplemental briefs shall be filed electronically and consist of no more than 14,000 words (source).
Although only 11 judges would be hearing the appeal, the majority of the entire panel of 29 active judges on the court would have to vote in favor of a full hearing. That means the judge that submitted this order must have a total of 15 justices agree with him, which given the political leaning of the 9th Circuit is unlikely, yet it is possible.
If approved, a hearing by the entire court could play in Trump’s favor even if the decision remains the same, as it portray a legal establishment that is not unanimously against the president taking action to secure the nation. It would also allow the travel ban a possibility of being reinstated without Trump having to submit the case to the Supreme Court, which as it stands now is lacking a tie breaking member.
As the mainstream media practically celebrates over what they consider a victory for the Democrat party, which has suffered nothing but losses since the election, President Trump’s may end up winning once again in the long run. At very least, a hearing by the full 9th Circuit is sure to feature some dissenting voices to an otherwise unanimous decision to dictate national security policy.
Regardless of the outcome of this request, at least we know that one judge in the 9th Circuit actually reads and understands the law.