WASHINGTON — The federal appeals court that had refused to allow the Trump administration to enforce its original travel ban order while litigation against it proceeded on Wednesday evening issued a follow-up order announcing that it would not consider vacating that decision — despite the fact President Trump has issued a new executive order to replace the first one.
The appellate ruling is a blow to the Trump administration on the facts of the order, but, more than that, it also contained an unusual criticism of Trump's methods of "intimidation" as well.
In the appellate order, the US Court of Appeals for the Ninth Circuit announced that a majority of active judges on the court (there are 25) had not voted for the court to reconsider the Feb. 9 decision over the initial executive order. Such reconsideration — called en banc review — would have meant 11 judges would have considered the matter, as opposed to the 3 who originally heard it.
After a judge of the court requested a vote on whether to rehear the case, the Justice Department had been seeking to have the court grant rehearing en banc so the court could vacate the earlier ruling against granting a stay — called, "vacatur" — due to the fact that the original order is being revoked.
In Wednesday's order, the original three-judge panel — Judges William Canby, Richard Clifton, and Michelle Friedland — went a bit further than simply announcing that en banc reconsideration would not be happening.
"The matter failed to receive a majority of the votes of the active judges in favor of en banc reconsideration. Vacatur of the stay order is denied," the order stated, citing a US Supreme Court case, U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, for the proposition that "the 'extraordinary remedy of vacatur' is ordinarily unjustified when post-decision mootness is caused by voluntary action of the losing party."
In other words, the panel wanted it to be made clear that the Justice Department's request was seen as unjustified in these circumstances — when it only changed the policy after it lost in court.
The Wednesday order leaves in place — as the law within the federal courts in all nine states of the Ninth Circuit — a decision that contained some strong language about the limits of executive authority in general and was highly critical of some specific actions of the Trump administration.
Beyond that, however, the decision was also notable for the two separate opinions submitted in the matter. One of the court's liberal judges, agreeing with the decision to let the ruling stand, also highlighted the importance of judicial independence.
"I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them," Judge Stephen Reinhardt wrote.
A conservative judge, while criticizing the appeals court's original decision and its decision on Wednesday, also took time at the end of his dissenting opinion to criticize Trump's attacks on the judiciary — although not by name.
"The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties," Judge Jay Bybee wrote. "It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy."
He was joined in his dissenting opinion by four other members of the appeals court, Judges Alex Kozinski, Consuelo María Callahan, Carlos Bea, and Sandra Segal Ikuta.
Earlier in the dissenting opinion, Bybee explained why he thought the panel decision was wrong and should be vacated — a roadmap, doubtless, to be employed as the administration proceeds with its defense of the executive order.
"The President’s actions might have been more aggressive than those of his predecessors, but that was his prerogative. Thus, the President’s actions were supported by a 'facially legitimate and bona fide' reason," he wrote in part, citing a US Supreme Court case that the Justice Department has relied upon in its defense of the executive orders.
"Even if we have questions about the basis for the President’s ultimate findings—whether it was a 'Muslim ban' or something else—we do not get to peek behind the curtain. So long as there is one 'facially legitimate and bona fide' reason for the President’s actions, our inquiry is at an end," Bybee concluded.
Although only four judges joined Bybee's dissent, that does not mean only five of the 25 active judges voted for rehearing. Other judges might have voted for rehearing, but then also decided not to join Bybee's dissent. In fact, the order from the court notes that "[f]ilings by other judges may follow."