A three-judge panel of the federal appeals court for the Ninth Circuit will hear oral argument today in State of Washington v. Trump, the Justice Department’s appeal of a temporary restraining order against President Trump’s temporary ban on entry into the United States by certain classes of aliens. (The website for U.S. courts of the Ninth Circuit provides live-streaming, at 3 p.m. Pacific Time.) The TRO was issued by Judge John Robart of the federal district court in Seattle, at the behest of two states, Washington and Minnesota.
Appeals courts frequently decide cases like this one after reviewing the written submissions, without oral argument. But I would not read anything into the panel’s decision to hear the parties. It is a case of national significance.
The three Circuit Court judges presiding over the appeal are William Canby Jr., a Carter appointee; Michelle Friedland, and Obama appointee; and Richard Clifton, a George W. Bush appointee. Over the weekend, the panel denied the Justice Department’s request for an immediate stay of Judge Robart’s suspension of the travel ban. Yet, it ordered prompt briefing – both parties had filed written arguments by yesterday afternoon.
As our Monday editorial points out, the appellate court could duck the issue of the TRO’s propriety as not yet ripe for review, sending the matter back to Robart for further proceedings (during which the suspension of the ban would presumably remain in place). The panel is more likely, though, to rule on whether the restraining order is appropriate. To uphold the TRO, the panel would presumably have to conclude that the administration is likely to lose on the merits – a finding that would be untenable if the law is followed, and that Robart purported to make without addressing the clear law on which the president’s executive order explicitly relies. Such a ruling would not be a final determination of the merits, but it would be a strong indication of the panel’s view of the merits.
The law is strongly on the Trump administration’s side, but that may not make any more difference to the famously left-leaning Ninth Circuit than it did to Judge Robart. (See Rich’s excellent column on Robart’s ruling, here.) If the administration loses before the panel, it could seek rehearing en banc. It is unusual for a Circuit to grant such a rehearing. In most Circuits, it means a review by all the active judges; because the Ninth Circuit is so large (with 29 active judges, as well as 19 senior judges), en banc review is limited by rule to 11 active judges (the chief judge and 10 others).
If the administration loses in the Ninth Circuit, it could appeal to the Supreme Court. There seems to be a prevailing assumption that, because the High Court’s four left-leaning justices vote as a bloc, there would be a 4-to-4 stalemate, which would mean that the Ninth Circuit’s ruling would be sustained. As I argue in a column this morning, there are reasons to doubt that the justices would deadlock in this case – I believe there is a strong possibility that Justice Kennedy would vote with the left-leaning bloc.