# Federal judge blocks President's executive order: how? **URL:** \ **Category:** Great Debates\ **Created:** [February 4, 2017, 1:50am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953 "2017-02-04T01:50:48Z")\ **Posts on this page:** 14\ **Page:** 13
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 11, 2017, 6:21pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/241 "2017-02-11T18:21:19Z")
> [@Procrustus](#): > > A single judge[initiating it](http://cdn.ca9.uscourts.gov/datastore/general/2017/02/10/17-35105_Supplemental%20Briefing%20Order.pdf). Is that unusual? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 11, 2017, 6:22pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/242 "2017-02-11T18:22:38Z")
> [@adaher](#): > > True, but they can’t pass bills with the intent of harming the businesses, and if they say out loud that this is their intent, then conservative courts can use that to throw the regulations or taxes out. What provision of the Constitution protects businesses from Congress attempting to shut them down? ---
**Author:** ![watchwolf49](https://avatars.discourse-cdn.com/v4/letter/w/e9c0ed/32.png) [@watchwolf49](https://boards.straightdope.com/u/watchwolf49)\ **Post date:** [February 11, 2017, 6:36pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/243 "2017-02-11T18:36:24Z")
How common is this type of action? … I’ve never heard of this before … one judge in effect appealing another judge’s ruling … ---
**Author:** ![watchwolf49](https://avatars.discourse-cdn.com/v4/letter/w/e9c0ed/32.png) [@watchwolf49](https://boards.straightdope.com/u/watchwolf49)\ **Post date:** [February 11, 2017, 6:40pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/244 "2017-02-11T18:40:38Z")
> [@Northern\_Piper](#): > > What provision of the Constitution protects businesses from Congress attempting to shut them down? There’s a reasonableness test … shutting down the tobacco companies for the reason of promoting public health … but I agree that may be a statutory right … ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [February 11, 2017, 6:43pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/245 "2017-02-11T18:43:25Z")
> [@CarnalK](#): > > Many politicians have said the desired effect of raising taxes on tobacco was to reduce smoking, ie designed to harm tobacco companies. You figure they could get those taxes struck down? Personally, I think you are utterly wrong. There might be a bill-of-attainder problem if a law was passed taxing the Smith Tobacco Company only. But that generally doesn’t happen. Besides, Congress can pass laws benefiting an industry – the old oil depletion allowance comes to mind. And so Congress can rescind such a law, which would definitely hurt the industry. ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [February 11, 2017, 7:01pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/246 "2017-02-11T19:01:05Z")
> [@Northern\_Piper](#): > > They can certainly decide what commercial practices should be regulated or in some cases outlawed. Yes, totally agree. > [@adaher](#): > > True, but they can’t pass bills with the intent of harming the businesses, and if they say out loud that this is their intent, then conservative courts can use that to throw the regulations or taxes out. > [@CarnalK](#): > > Many politicians have said the desired effect of raising taxes on tobacco was to reduce smoking, ie designed to harm tobacco companies. You figure they could get those taxes struck down? Personally, I think you are utterly wrong. IMHO, you’re both missing the point. The legislature has a legitimate role and, indeed, a fundamental and crucial obligation to protect and advance the public interest. It’s not about “harming a business”, it’s about protecting the public from being poisoned, cheated, deceived, or otherwise abused in any of the ways that self-serving enterprises might find profitable, and it’s perfectly legitimate to require enterprises engaging in such activities to cease and desist and modify their business models accordingly. This is not new, and it’s not news. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [February 11, 2017, 7:11pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/247 "2017-02-11T19:11:51Z")
> [@Northern\_Piper](#): > > Is that unusual? Yes, very unusual. Parties can petition for full panel review, and often do. (it’s rare for it to be granted. Apparently a single judge can do it without such a petition. I couldn’t even find a rule on it. I don’t think one judge can order a rehearing en banc, but one judge can raise the issue and force a vote: > [@](#): > > \*\* FRAP 35. En Banc Determination.\*\* > A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc > [@](#): > > f) Call for a Vote. A vote need not be taken to determine whether the case will be heard or reheard en banc unless a judge calls for a vote. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [February 11, 2017, 9:19pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/248 "2017-02-11T21:19:34Z")
So is a judge’s request for an _en banc_ hearing more likely to be approved than a similar request by a party to the case? Maybe there is not enough history of such _sua suponte_ requests to make odds on the matter. Whether intended or not, I do think an en banc hearing plays to the administration’s favor. I seriously doubt the full court would reverse the panel’s decision but such a hearing takes some time. And maybe it is just enough time to get Gorsuch seated on the Supreme Court? ---
**Author:** ![DinoR](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dinor/32/2821_2.png) [@DinoR](https://boards.straightdope.com/u/DinoR)\ **Post date:** [February 12, 2017, 12:11am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/249 "2017-02-12T00:11:21Z")
> [@Iggy](#): > > And maybe it is just enough time to get Gorsuch seated on the Supreme Court? I’m not sure that helps Trump’s case. Gorsuch has some history of being skeptical of executive privilege and opposing excessive executive branch rule making transferring power from the legislative branch. He’s also not shown any issue with applying the Religious Freedom Restoration Act; Washington’s case included the argument that Trump’s EO was a violation of RFRA. Trump may not be that happy if Gorsuch is seated before the case gets to SCOTUS. ---
**Author:** ![Zach29](https://avatars.discourse-cdn.com/v4/letter/z/e0b2c6/32.png) [@Zach29](https://boards.straightdope.com/u/Zach29)\ **Post date:** [February 12, 2017, 10:24am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/250 "2017-02-12T10:24:06Z")
If a judge blocks an executive order, all they [the judge] can do is either refuse to implement it, or issue arrest warrants holding individuals in contempt (which would be very unlikely). When a high lever Appellate court refuses to overturn the decision of a lower court, they are essentially condoning the decision. When a court issues an injunction, even the President takes notice and usually tries to abide by it, to show respect to the rule of law and reverence to the Judicial branch. But it is possible for the President to ignore the courts, even the Supreme Court. There are good reasons a President would try to avoid this from happening. It could make him lose a lot of respect in the eyes of Congress, perhaps even lead to his impeachment, depending what the issue was. And it’s not a good idea to openly defy judges, they are powerful government officials and hold their positions for life, whereas the President might only hold his office for 4 years, and what could happen then? It’s also theoretically possible (albeit extremely unlikely) that if the Supreme Court started issuing arrest warrants in defiance of the President it could start a Constitutional crisis and small scale civil war between different factions of the government, resulting in a coup. The Congress would almost certainly act long before then and either remove the President or remove the problem judges from their official positions. ---
**Author:** ![Zach29](https://avatars.discourse-cdn.com/v4/letter/z/e0b2c6/32.png) [@Zach29](https://boards.straightdope.com/u/Zach29)\ **Post date:** [February 12, 2017, 10:33am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/251 "2017-02-12T10:33:07Z")
Getting back to what the courts could do to interfere with an executive order, they could refuse to allow individuals to be lawfully prosecuted by the executive branch, but that is about it. And presidents are not dictators, and only hold those functional legal powers that Congress has previously decided to delegate to them (besides from the few special powers specifically spelled out in the Constitution, of course). ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [February 12, 2017, 7:03pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/252 "2017-02-12T19:03:23Z")
> [@Iggy](#): > > So is a judge’s request for an _en banc_ hearing more likely to be approved than a similar request by a party to the case? Maybe there is not enough history of such _sua suponte_ requests to make odds on the matter. > > Whether intended or not, I do think an en banc hearing plays to the administration’s favor. I seriously doubt the full court would reverse the panel’s decision but such a hearing takes some time. And maybe it is just enough time to get Gorsuch seated on the Supreme Court? Interestingly, the “judge” in question is actually Chief Judge Sidney Thomas, a Pres. Clinton appointee. I am not sure why he would bypass the normal procedure of waiting to see if a request for re-hearing/_en banc_ hearing was received before putting the issue up for vote. I’d say it’s a highly unusual move. :eek: ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 12, 2017, 8:11pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/253 "2017-02-12T20:11:01Z")
The order is issued by the Chief Judge, but it just says “a judge on this court”. Do we know if the Chief Judge is the judge, or is he just issuing the order setting dates for filing on behalf of the court? ---
**Author:** ![dofe](https://avatars.discourse-cdn.com/v4/letter/d/7ba0ec/32.png) [@dofe](https://boards.straightdope.com/u/dofe)\ **Post date:** [February 12, 2017, 8:43pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/254 "2017-02-12T20:43:52Z")
> [@Northern\_Piper](#): > > The order is issued by the Chief Judge, but it just says “a judge on this court”. Do we know if the Chief Judge is the judge, or is he just issuing the order setting dates for filing on behalf of the court? As the \*en banc \*coordinator for the 9th Circuit, Judge Thomas is the one who issues the order on any such requests, so we don’t know if he was the judge who requested a vote on whether to have this reconsidered _en banc_. [Previous page](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953.md?page=12)