So now, if the Trumpenfürher instructs the DOJ to appeal to the Supreme Court, a 4-4 split would uphold the order.
I imagine this means that the Democrats in the Senate will proceed “with all deliberate speed” on the Gorsuch nomination.
The Court concluded that the Government had not shown a likelihood of success on the merits of the appeal, nor has it shown irreparable harm, and therefore dismissed the application for an emergency stay.
Wow.
How many judges are on the Circuit Court, if the DOJ tries an appeal en banc?
Could you amplify a little? CBS News radio reported that it was procedural and not on the merits of the case.
(I’m not doubting your word! I just crave some clarification.)
What makes you think it would be 4-4? Two GOP-appointed judges have agreed with the WA injunction so far.
29 active judges and 19 on senior status, but 9th Circuit en banc panels consist of 11 judges.
To address the government’s motion to stay the TRO, the Court had to consider factors that included the likelihood that the government could win on the merits – accordingly, the Court had to delve into merits of the case.
It didn’t have to. They could have ruled the appeal from a TRO procedurally deficient, as many law profs had argued, without reaching the merits.
The fact that they concluded that there was not a likelihood of success on the merits of their appeal is bad news for the Government’s attempt to get this action by Washington and Minnesota denied in the long run. That’s four judges (one District, three appellate) who have concluded that the Executive Order probably violates the Constitution. Beginning to sense a direction here… :dubious:
Last I checked, the 9th Circuit is so large, that it splits itself up into smaller groupings of 11 for en banc hearings…
Don’t forget the super en banc of all 29 active judges 
It’s never happened, but it could!
Some interesting parts of the 9th Circuit’s order.
On the issue of standing:
[QUOTE=Ninth Circuit]
The States argue that the Executive Order causes a concrete and particularized injury to their public universities, which the parties do not dispute are branches of the States under state law. See, e.g., Hontz v. State, 714 P.2d 1176, 1180 (Wash. 1986) (en banc); Univ. of Minn. v. Raygor, 620 N.W.2d 680, 683 (Minn. 2001).
Specifically, the States allege that the teaching and research missions of their universities are harmed by the Executive Order’s effect on their faculty and students who are nationals of the seven affected countries. These students and faculty cannot travel for research, academic collaboration, or for personal reasons, and their families abroad cannot visit. Some have been stranded outside the country, unable to return to the universities at all. The schools cannot consider attractive student candidates and cannot hire faculty from the seven affected countries, which they have done in the past.
According to declarations filed by the States, for example, two visiting scholars who had planned to spend time at Washington State University were not permitted to enter the United States; one was informed he would be unable to obtain a visa. Similarly, the University of Washington was in the process of sponsoring three prospective employees from countries covered by the Executive Order for visas; it had made plans for their arrival beginning in February 2017, but they have been unable to enter the United States. The University of Washington also sponsored two medicine and science interns who have been prevented by the Executive Order from coming to the University of Washington. The University of Washington has already incurred the costs of visa applications for those interns and will lose its investment if they are not admitted. Both schools have a mission of “global engagement” and rely on such visiting students, scholars, and faculty to advance their educational goals. Students and faculty at Minnesota’s public universities were similarly restricted from traveling for academic and personal reasons.
Under the “third party standing” doctrine, these injuries to the state universities give the States standing to assert the rights of the students, scholars, and faculty affected by the Executive Order. See Singleton v. Wulff, 428 U.S. 106, 114- 16 (1976) (explaining that third-party standing is allowed when the third party’s interests are “inextricably bound up with the activity the litigant wishes to pursue”; when the litigant is “fully, or very nearly, as effective a proponent of the right” as the third party; or when the third party is less able to assert her own rights). Vendors, for example, “have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function.” Craig v. Boren, 429 U.S. 190, 195 (1976). Likewise, doctors have been permitted to assert the rights of their patients. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965). And advocacy organizations such as the NAACP have been permitted to assert the constitutional rights of their members. See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958).
Most relevant for our purposes, schools have been permitted to assert the rights of their students. See, e.g., Runyon v. McCrary, 427 U.S. 160, 175 & n.13 (1976) (“It is clear that the schools have standing to assert these arguments [asserting free-association rights, privacy rights, and ‘a parent’s right to direct the education of his children’] on behalf of their patrons.”); Pierce v. Soc’y of Sisters, 268 U.S. 510, 536 (1925) (allowing a school to assert the “right of parents to choose schools where their children will receive appropriate mental and religious training [and] the right of the child to influence the parents’ choice of a school”); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1487-88 (9th Cir. 1995) (citing Pierce and rejecting the argument that the plaintiff school had no standing to assert claims of discrimination against its minority students); see also Ohio Ass’n of Indep. Sch. v. Goff, 92 F.3d 419, 422 (6th Cir. 1996) (citing similar authorities). As in those cases, the interests of the States’ universities here are aligned with their students. The students’ educational success is “inextricably bound up” in the universities’ capacity to teach them. Singleton, 428 U.S. at 115. And the universities’ reputations depend on the success of their professors’ research. Thus, as the operators of state universities, the States may assert not only their own rights to the extent affected by the Executive Order but may also assert the rights of their students and faculty members.
We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order.
[/QUOTE]
On plaintiffs’ constitutional argument regarding establishment and equal protection:
[QUOTE=Ninth Circuit]
The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (“The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. . . . Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”); Larson, 456 U.S. at 254-55 (holding that a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions); Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266-68 (1977) (explaining that circumstantial evidence of intent, including the historical background of the decision and statements by decisionmakers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose).
The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.
[/QUOTE]
Aaaaand the inevitable tweet of angry befuddlement:
[QUOTE=Dolt45]
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
[/QUOTE]
Not saying it will be 4-4. Just that if the Court were to split that way, then the order is upheld.
I’ve said elsewhere that I think Roberts might be a wild card on this one.
A bit conflicted on this.
On the one hand I’m pleased that the order was struck down since I think it was probably a stupid and counterproductive policy. OTOH, it does seem like a further expansion of the court’s powers.
Not that I’m a legal scholar or anything. But most of the legal commentary before these decisions came down suggested that it would be a stretch for the courts to overrule the prez in this matter. So I assume this is something new.
What I wished:
Actually, 2 males and one female judge (all not minorities AFAIK) dropped the hammer on El Trompo.
Maybe the issue here are the news sources that you are relying for information.
I don’t think this is true. Maybe it’s true for the subset of legal commentary predicting what the EO would look like. But I don’t think it’s true of the legal commentary after it was issued.
I have to say, when you see the ACLU and the Cato Institute on the same page …
Keep the umbrellas handy. A Twitterstorm coming.