Today, moments before I was scheduled to go live on Fox Business to talk about the different choices confronting the Trump administration, the Ninth Circuit threw a curveball:

Filed order (SIDNEY R. THOMAS): A judge on this Court has made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel on February 9, 2017, should be reconsidered en banc. A sua sponte en banc call having been made, the parties are instructed to file simultaneous briefs setting forth their respective positions on whether this matter should be reconsidered en banc. The briefs should be filed on or before 11:00 a.m., Pacific time, on Thursday, February 16. The supplemental briefs shall be filed electronically and consist of no more than 14,000 words.

My initial reaction (which I hinted at in my earlier post) was that one of the conservative judges requested an en banc vote. Why? Judge Kozinski does love his dissentals. Really, he could simply copy and paste Michael McConnell’s devastating evisceration of the panel opinion, and that would suffice.

After some reflection, there may be another explanation. The best thing that could happen to the Trump Administration would be to withdraw the appeal (it will go nowhere with this panel), repeal and replace the executive order, and try again in the district court. Under the voluntary cessation doctrine, Judge Robart could probably keep jurisdiction, but he would be fully equipped to hold an evidentiary hearing to determine the sufficiency of the record. But in any event, the Trump Administration has absolutely nothing to gain by sticking around the Ninth Circuit. Shortly before the sua sponte en banc call went out, the White House revealed that indeed it was its preference to go back to the district court. (This is probably not what President Trump meant by “See you in court,” but it works).

So why the en banc call? I have a sinking suspicion that a liberal member of the court (you know who) did this as a defensive move. Once the case is remanded back to Judge Robart, he has full control. But so long as a sua sponte en banc call is pending, the Court of Appeals controls the case. It can linger indefinitely, even as other district courts (such as EDVA) resolve the matter. I can imagine a circumstance where the Trump Administration issues a new executive order, and then the en banc court grants review. Citing the voluntary cessation doctrine, the court says it will resolve the legality of the order. That posture gives the Ninth Circuit a head-start on the other circuits. This shortcuts the possibility that the district court in the interim modifies the scope of the temporary restraining order.

This may be downright asinine, but the sequencing is so bizarre: hours after the White House announces it wants to go back to the district court, then an en banc call is made.

 

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