The federal appeals court reviewing President Trump’s revised immigration order in a case from Hawau refused on Friday to send the dispute at the outset to a full court — either one of 11 judges or one of 24. The U.S. Court of Appeals for the Ninth Circuit said the state’s plea for en banc review failed to get the support of a majority of its 24 active judges.
That means the case of Hawaii v. Trump will proceed initially in the usual format, a three-judge panel. The Friday order made clear that the option of en banc review would be open after the panel has ruled. The panel will hold a hearing on May 15.
The denial of full-court review is likely to mean that the Ninth Circuit Court’s review will be on a slower pace than review of the Trump executive order by another federal appeals court in a case from Maryland — the U.S. Court of Appeals for the Fourth Circuit. The Fourth Circuit Court has voted to bypass a three-judge panel and put the case directly before that court’s 15 active judges.
The federal appeals courts vary in the size of their full benches. Because the Ninth Circuit Court is so large, it is the only one that has two possible en banc options — a “limited” one composed of 11 judges, and a full court or “super sn banc” court of 24. In the Friday order, the court’s chief judge noted that unidentified judges had called for votes on both options, but neither got a majority of the 24 who were eligible to vote. (Judges who have taken “senior” status do not get to vote on whether or not to go en banc.) The state of Hawaii, joined by the Trump Administration, had asked for initial en banc review but that still had to be put to a vote at the request of one or more judges.
The Fourth Circuit Court’s scheduled hearing is set for May 8 — a week before the hearing at the Ninth Circuit Court.
The Trump Administration is appealing in both of the appeals courts. In each, a federal trial judge– one in Honolulu and one in Greenbelt, MD — issued nationwide orders temporarily blocking key parts of the Trump immigration restrictions. The Hawaii enforcement bar is broader, against enforcement of both the proposed 90-day suspension of any foreign nationals from six Mideast nations with Muslim majorities and the proposed 120-day suspension of entry of any refugee from anywhere in the world. The Maryland order is aimed only at the 90-day suspension of entries from the six listed nations.
In both cases, the judges concluded that the provisions blocked from enforcement are likely to be proven to be forms of unconstitutional discrimination against Muslims because of their religion.
Although the controversy over the Trump executive order is expected sooner or later to go to the Supreme Court, there is no way to predict at this point which case — from Hawaii or Maryland — will get there first. Besides the question of the validity of the Trump restrictions, the two appeals courts also have before them the separate question of whether to allow the restrictions to go into effect temporarily while the rest of the appeal goes forward. Trump Administration lawyers made that request in both cases.
The question of delay of the judges’ orders to allow enforcement to begin is a preliminary issue for both appeals courts, and either one of them might be the first to rule on that issue alone, which no doubt would send one of the cases right to the Supreme Court on the present enforcement issue.
No matter which side were to lose on the enforcement question, that side would have to persuade five of the nine Justices to rule in that side’s favor on that issue. Otherwise, the ruling of the appeals court on that issue would stand.