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Ninth Circuit Splinters Over Trump Travel Ban Rehearing

By Casey C. Sullivan, Esq. on March 20, 2017 | Last updated on March 21, 2019

A three-judge panel in the Ninth Circuit upheld an order blocking President Trump's first travel ban last month. The administration subsequently reissued a new executive order replacing the first and voluntarily dismissed its appeal to the earlier injunction. That should be the end of that debate, right?

Not exactly. One Ninth Circuit judge wanted the court to rehear the case en banc and vacate the panel opinion, despite the dismissal. Last week, the Ninth declined. But in doing so, the judges revealed a sharp split in the circuit.

First, the Dissents

The Ninth announced last Wednesday that a majority of its active judges had declined to reconsider the panel ruling en banc. At that time, Judges Stephen Reinhardt and Jay Bybee issued a concurrence and dissent, respectively, with more filings promised in the future.

The panel mistakenly grafted due process caselaw from the domestic sphere onto executive action affecting aliens outside U.S. borders, Judge Bybee argued in his dissent. The proper standard, he says, was established in Kleindienst v. Mandel: immigration determinations may stand in the face of constitutional challenges so long as there is a "facially legitimate and bona fide reason" behind them. Once that bar has been met, courts cannot "peek behind the facial legitimacy" of the order to look at whether the now-President's campaign statements revealed anti-Muslim animus or any other objectionable motive.

Then Friday rolled around, and the rest of the filings came tumbling in, Judge Alex Kozinski's chief among them. Judge Kozinski took on two "peculiar" features of the panel opinion. First, the panel's holding was based largely on due process concerns. But, Judge Kozinski argues, "the vast majority of foreigners covered by the executive order have no due process rights."

Second, despite ruling on due process, the panel "says all too much" about the Establishment Clause, Judge Kozinski writes. In stating that Trump's past statements regarding a "Muslim ban" could reveal a non-secular intent behind the travel ban, the panel "made this evidentiary snark hunt the law of the Ninth Circuit." Such an approach will "chill campaign speech" and "mire us in a swamp of unworkable litigation."

The panel's holding is, Kozinski says, "spreading like kudzu through the federal courts," noting that the district court in Hawaii turned to Trump's past statements when halting the new ban.

And the Concurrences

Judge Kozinski's dissent is significant, since it tackles the main issue tripping up the most recent travel ban: the Establishment Clause and what evidence court's can consider when finding Establishment Clause violations.

While the Ninth's earlier opinion was grounded on due process concerns, a ruling from a district court in Hawaii last Wednesday, two days before Kozinski's dissent was released, held that a "reasonable, objective observer" would recognize that the ban disfavored Islam "in spite of its stated, religiously-neutral purpose." It based that conclusion on the "significant and unrebutted evidence of religious animus" shown in the president's past statements.

Judge Stephen Reinhardt, concurring, called Kozinski's dissent a "diatribe," one which seeks to "decide the constitutionality of a second Executive Order that is not before this court."

"Peculiar indeed!" he exclaimed.

Judge Marsha S. Berzon, as well, couldn't help but notice that Judge Kozinksi "expressed at some length his unhappiness with the invocation of the panel's Establishment Clause analysis in a recent district court order," thereby "venturing an opinion on an appeal not before us."

The dissenting judges, she argued, were jumping the gun. "We will have this discussion, or one like it," Judge Berzon concludes. "But not now."

The Ninth might not have the first word in that discussion, however. Last week, the DOJ filed a notice to appeal a Maryland district court ruling that also blocked the ban. That move could shift the legal battle over to the Fourth Circuit.

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