The 15-judge U.S. Court of Appeals for the Fourth Circuit voted on Monday afternoon to review before the full bench, instead of a three-judge panel, the legality of President Trump’s 90-day suspension of entry into the U.S. of any foreign nationals from six Mideast nations. That action, taken by an unspecified majority vote, could speed up the process of moving this major constitutional controversy on to the Supreme Cour
At issue in the Circuit Court’s review is also whether that court will postpone, during the appeal process, a Maryland federal judge’s nationwide ruling barring enforcement of the 90-day suspension of entry by anyone from Iran, Libya, Somalia, Sudan, Syria and Yemen. If, as seems likely, the Circuit Court rules first on the postponement question, that is the issue that could move first — and quickly — to the Supreme Court.
Under review by the appeals court is the ruling last month by Maryland District Judge Theodore D. Chuang that the presidential order suspending admissions from the six Muslim-majority nations was a form of unconstitutional discrimination based on religion, (Meanwhile, Judge Chuang refused on Monday to expand his ruling to block enforcement of the Trump initiative that suspended for 120 days any refugees from entering the U.S. from anywhere in the world. That new action is discussed in the post just below this one.)
The Trump Administration had already gained review by the Circuit Court on an expedited schedule, and the case has been scheduled for a hearing on May 8. The en banc court did not change that date in agreeing to put the case before the full bench.
The move to en banc review is not a common procedure, and granting it even before the normal three-judge panel had a chance to review the case, is a strong indication that a majority of the judges agreed on its importance. Expedited review also reflects the same perception.
Although the hearing is not until May 8, that does not necessarily mean that the Circuit Court will wait until then to make up its mind on what is a preliminary question: should the Maryland judge’s order against enforcement of the 90-day suspension be put on hold while the Circuit Court considers its legality or constitutionality of President Trump’s action itself.
The Trump order is also under review, in a broader case, now pending before another federal appeals court — the Ninth Circuit. So far, it appears that case will be reviewed there initially by the more customary mode, before a three-judge panel. A hearing has been set in that case for May 15 — a week behind the Fourth Circuit Court’s hearing.
The Ninth Circuit case also has in it a request by government lawyers to put on hold a Hawaii judge’s nationwide order barring enforcement of several key parts of the revised Trump executive order.
The Ninth Circuit Court is the federal appeals court that refused to allow the Trump Administration to put into effect the original version of its immigration restrictions. It was in response to that setback that the president and his aides composed the revised draft that is now under review in the lower federal courts.
If and when the challenges to the revised Trump order or the issue of postponement during appeals court review reach the Supreme Court, all nine Justices — including the newest member, Neal M. Gorsuch — will be on hand to act. If an appeals court allows, or does not allow, enforcement of Trump’s actions, it would take the votes of five of the nine Justices to reverse that.
