Is that unusual?
What provision of the Constitution protects businesses from Congress attempting to shut them down?
How common is this type of action? … I’ve never heard of this before … one judge in effect appealing another judge’s ruling …
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 …
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.
Yes, totally agree.
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.
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:
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?
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.
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.
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).
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:
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.