Goodbye, Ninth Circuit;
on to the Supreme Court. (photo by Jabin Botsford/The Washington Post via Getty Images)
In the latest legal defeat for the Trump administration’s travel ban — and yes, thanks to President Trump himself, it’s now okay to call it a travel ban (or, to quote POTUS on Twitter, “TRAVEL BAN!”) — the U.S. Court of Appeals for the Ninth Circuit just ruled against the revised version of the executive order in question.
The panel — consisting of three Clinton appointees, Judges Michael Daly Hawkins (liberal), Ronald M. Gould (moderate), and Richard A. Paez (very liberal; parenthetical characterizations of ideology are my own, based on my own service as a Ninth Circuit clerk) — was unanimous. It backed up its bottom line in an 86-page opinion.
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The opinion was issued “per curiam” or “by the court,” meaning no individual judge declared authorship. Perhaps nobody wanted the political heat, or perhaps the panel wanted to convey the straightforwardness of the case, which is often the case with per curiams.
Although Travel Ban 2.0 is now 0-2 in the appeals courts — the Fourth Circuit, sitting en banc, ruled against the ban last month — I believe that the legal and constitutional question, as distinct from the policy question, is actually quite close. The Fourth Circuit opinion drew a spirited dissent from the highly respected Judge Paul V. Niemeyer, joined by two colleagues. And a number of leading Ninth Circuit judges, including Judge Alex Kozinski and Judge Jay Bybee, previously wrote in defense of the earlier version of the ban (as a legal and constitutional matter; the policy merits are not the province of judges, of course).
Judges Kozinski and Bybee were criticized by some of their more liberal colleagues for discussing the merits of Travel Ban 1.0 after it had been superseded by a new order, and in the unusual vehicle of “dissentals” (aka dissents from denial of rehearing en banc). But I noted, in their defense, that this was essentially the last time they had a chance to opine on this issue of national importance, because “the Hawaii case might not end up in the Ninth Circuit if the government decides to proceed in another court (e.g., the Fourth Circuit).” And it seems this has now come to pass; the administration has already sought Supreme Court review of the Fourth Circuit case. (It could also seek review in the Ninth Circuit case and the cases could be argued together, but I see no reason for this; the Fourth Circuit case tees up the issues just fine.)
So the travel ban ball is now in the Supremes’ court. My own prediction: the government will prevail by a 5-4 vote. But in these tumultuous times, predictions aren’t worth the pixels they’re made in.
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Regardless of the outcome, let’s hope that SCOTUS rules soon. I agree with Professor Josh Blackman, writing in the New York Times: “The legal status of President Trump’s executive order, and indeed that of his entire administration, needs finality, sooner rather than later. Even if five justices plan to strike down the executive order, they should do so now.”
Hawaii v. Trump: Opinion [U.S. Court of Appeals for the Ninth Circuit]
Trump Loses Travel Ban Ruling in Appeals Court [New York Times]
9th Circuit deals Trump travel ban another defeat [CNN]
America Needs Closure on the Travel Ban [New York Times]
Earlier: Friday Night Fights — At The Ninth Circuit
Trump Tweets About The ‘TRAVEL BAN’
David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].