Why did a 9th Cr Judge make a sua sponte request for an En Banc hearing?
The White House had already signaled that it would not seek to push the appeal either to the SCOTUS or via en banc. The WH was willing to go back to the District Court.
So why did this happen? Originally I suspected that it may have been Kozinski because he LOVES to bury court liberals with scathing dissents. He is a particularly effective writer and I have little doubt he wanted to explain to them all the dumb things they have done here. But the sua sponte motion came several hours AFTER the WH announced its intentions. This means it probably was not Kozinski, or any other conservative.
So it was probably a liberal judge. Why? He/she wanted to retain control -- to keep the case at the 9th Cir level. In this condition, the case can linger. For a long time even. If the case were remanded back to the District Court (Robarts) then that court has full control again. And Robarts would set a schedule for it to proceed.
What is probably going on here is this -- the 9th Cir liberals realized Trump may simply issue a new EO. The libs want to retain control so they can issue another ruling on the new EO, without another Distr. Ct hearing. This will also allow the 9th Cir. first shot among all the circuits at issuing a ruling on the new EO. If the matter went back to Robarts, then he would hear the full case and quite likely modify the scope of his earlier order. The 9th Cir. libs dont want that to happen.
Another possibility is that a lib 9C judge perceived a weakness in the original per curiam written opinion and wanted a chance to shore up the weak part. The 9th Cir has done this before.
How will Trump respond? I think they will withdraw their appeal (voluntary cessation). They will then repeal and replace the EO. In this sequence, I dont know if Robarts will retain the case or not. He may, and it does make some sense that he would, but we will have to see on that.
While I think the 9th Cir was wrong about students and green card holders, if Trump excludes them i the new EO, then the standing argument based on these claims is eliminated. The burden would then fall on the opponents to show visa applicants with zero connections to the United States (like refugees) have the necessary standing. From a litigation perspective, Trump would be in a better posture this way.
Anyway, I am guessing. This is a high level appellate poker game. But the consequences of this game to the people of the United States are high.
Last edited: Feb 11, 2017