Bench Memos

Law & the Courts

Re: Ninth Circuit Victory for Trump Administration’s Defunding of Planned Parenthood

As I reported nearly a month ago, on June 20, in a notable victory for the Trump administration, a Ninth Circuit panel granted the motion by the U.S. Department of Health and Human Services for a stay of orders of three separate district courts that preliminarily enjoined HHS from implementing its revised Title X regulations imposing restrictions on funding of pre-pregnancy family planning services.

Some interesting things have happened since then:

First, on July 3, the Ninth Circuit granted rehearing en banc of the matter and ordered that the panel’s ruling “shall not be cited as precedent” in the Ninth Circuit.

One experienced court-watcher told me that he found it extraordinary that the Ninth Circuit would grant rehearing en banc on a motion for a stay (as distinct from a final ruling on the appeal). That action presumably had something to do with the subject matter of the motion, the existence of a majority of liberal judges on the Ninth Circuit, and the fact that the panel ruling was issued by three Republican appointees.

Second, just last Thursday, July 11, the eleven-member en banc panel selected to handle the rehearing denied motions to stay the original panel’s June 20 stay order. (See Circuit Rule 35-3 for more on the Ninth Circuit’s unique “limited en banc court.”) The panel divided seven to four, with the four dissenters being the Democratic appointees on the panel. The original panel’s stay order thus remains in effect.

It’s interesting that seven Republican appointees were drawn for the limited en banc panel. Three Democratic appointees recused themselves from the matter, so that would mean, I think, that the draw of ten judges (on top of the chief judge, Democratic appointee Sidney Thomas, who sits on every limited en banc panel) occurred from a pool of twelve Democratic appointees and eleven Republican appointees.

There is obviously some luck in drawing seven Republican appointees from that pool, but President Trump’s impressive success in rebalancing the composition of the Ninth Circuit made the odds much less formidable than they previously were.

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