President Trump stated that “That circuit is in chaos… that circuit is in turmoil.” There is a move to divide the Ninth Circuit, which has been long discussed. Under one plan, the new Ninth Circuit would be largely California — something unique in the nation where circuits cover multiple states. Under the Senate proposal, Oregon, Hawaii, Guam, and the Northern Marianas would join California. That means that the circuit would be composed almost exclusively of judges from one state. Indeed, California alone produces as many or more appeals than the entire Fifth Circuit (the second largest circuit).
It is important to acknowledge that the Administration, while prevailing in Boston, suffered a second defeat in Virginia recently. Virginia is part of the Fourth Circuit.
President Trump insisted that the Executive Order or its rollout were not a problem and that the Administration is a “finely tuned machine.” He insisted that the problem is a “bad court.” I obviously do not agree on the drafting or the rollout. Moreover, while I disagree with basis for the opinion, I do not attribute the result to the Ninth Circuit being an outlier among the circuits.
The dual track approach on the appeal makes sense. The original executive order was poorly drafted, poorly executed, and poorly defended. The Administration would greatly improve the order by taking obvious steps like an express exemption for green card holders. This is not to say that the law does not favor the Administration. In my view, it does. I thought that the Ninth Circuit opinion was quite weak and impressionistic.
The Administration could effectively moot aspects of the earlier appeal while continuing to appeal other aspects.
