Fourth Circuit Agrees To Hear Appeal En Banc Over Trump Immigration Order

In a major tactical victory for the Trump Administration, the United States Court of Appeals for the Fourth Circuit has agreed to expedite the review of appeal of a Maryland district court judge in blocking the immigration order of President Donald Trump.  The Fourth Circuit will hear the appeal en banc rather than leave the matter to a three-judge panel.  That decision favors the Administration and will reduce the time for appeal.

To reach the decision, the fifteen judges on the circuit and vote by majority to allow the case to proceed to the full en banc court.

This will set up a rapid schedule in May.  The decision in Hawaii blocking the order will be heard by the Ninth Circuit on May 15.   Now the Fourth Circuit argument will occur on May 8.

I stated at the outset of the controversy that we were likely to see a mix of decisions on the issue in this first stage.  As previously discussed, I believe that the odds favor the Administration in prevailing in the long run.  If one includes the Ninth Circuit judges who recently dissented from the earlier Ninth Circuit ruling against the Administration and the recent ruling in favor of the Administration, it is now roughly equal in the number of federal judges on both sides.
The result is that the controversy is ideally set for a Supreme Court review with a major national issue and a split among the circuits.  Of course, that split could be eliminated by the decisions of the Ninth and Fourth Circuits but the odds could not be higher at this point for an eventual review before the now full Supreme Court.

9 thoughts on “Fourth Circuit Agrees To Hear Appeal En Banc Over Trump Immigration Order”

  1. The table is now set with Justice Kennedy again holding the swing vote.I expect that he will join his former clerk to uphold the EO to form the majority with the “usual suspects” voting to strike it down.

  2. Wasn’t this necessary and immediate national security “temporary” ban supposed to last 90 days so that a review could be done and changes made? I don’t know, but by the time this TRO has wound its way through the courts, wouldn’t the review already be done and changes ready to implement?

    1. I’ve been curious about that same point. It seems that had the review been initiated upon issuance of the EO, it should have been completed about now. What I didn’t bother to check then (and still haven’t) is whether the TROs apply to the entirety of the EO or just the suspension of entry. If the entirety of the EO, then the review would likewise have been suspended.

      That’s not to say that the Administration shouldn’t have been diligently working to come up with new policies and procedures, that work is clearly within their purview and could even take place without public scrutiny.

      1. I agree Wonderer. I cannot fathom a court order that would prevent the executive branch from reviewing existing policies and procedures before actual implementation. But then again, government at all levels seems to go with the ready, fire, aim strategy of public policy, with little consideration of whether they hit the target.

  3. Look, we all know how the judges in both the Ninth and the Fourth will vote: those appointed by the Dem president will vote “against” the EO, while the Rep-appointed will vote “for” the EO. District Court judges are appointed for life, so they only have to answer to their friends, neighbors, and alumni. Can you image a District Court judge in the Pacific Northwest voting to uphold the EO and then having to explain at the cocktail party, or the 19th hole at “The Club”, or the alumni dinner? Yikes! He/she’d be vilified or shunned. Better to vote along political party lines (and force SCOTUS do the job) and have their buddies hug them, buy drinks, or declare them Alumnus of the Year. Can any judge withstand the destruction of a social life nutured over years because he/she simple voted according to the law (“fascist!!”) instead of according to liberal dogma (“principled”!!).

  4. The Fourth is more reasonable than the wacky Ninth, so I have great hope for this en banc hearing.

  5. This is good news and is probably one of the fastest times the route to the SCOTUS en banque will have been traveled. epeciallyone where the entire 9th Circuit has had to put itself on the line. Measured in a mere few months rather than the usual years. The man is learning how to get things done rather than just watch the grass grow.

    One way or the other the originhal objective of cleaning up and updating the immigration system will be satisfied and then put into an open for business mode.

    There are advantages to doing things in a business like fashion and bulldozing politics to the side.

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