Trump Will Issue New Travel Order Instead of Fighting Case in Court
“In other circumstances,” the brief said, “the panel’s multiple errors in sustaining a substantially overbroad injunction, and thereby prohibiting enforcement of a lawful executive order designed to protect the nation’s security, would warrant” review by a larger panel of the Ninth Circuit.
“Such review is not called for at this time,” the brief said, given the forthcoming executive order.
In their own brief filed Thursday, Washington and Minnesota agreed with the administration on one thing: that no rehearing of the panel’s decision was warranted. But the states argued that the panel’s ruling had been careful and correct.
“The panel’s order thoroughly considered the legal precedent and the parties’ arguments and neither overlooked nor misunderstood a point of law or fact,” the brief said.
The briefs came in response to a request from the appeals court. Last Friday, an unidentified appeals court judge called for a vote on whether the three-judge panel’s ruling should be reheard by a larger panel of the Ninth Circuit.
If a majority of the court’s active judges vote to rehear the case, it would typically be considered by an 11-member panel made up of the circuit’s chief judge and 10 judges chosen at random.
Rehearing motions filed by parties and requests for votes on rehearings requested by judges are not particularly unusual. The Ninth Circuit rehears decisions issued by three-judge panels 15 to 25 times a year, the court said.
The Ninth Circuit has 25 active judges; 18 were appointed by Democratic presidents.
Even if the Ninth Circuit agrees to vacate the panel’s decision, challenges to the original executive order will continue in other courts. And the new executive order may draw fresh legal challenges.