RUTHFULLY YOURS

At least one judge on the Ninth Circuit has requested reconsideration in the matter of State of Washington and Minnesota v. President Trump. The Ninth Circuit chief judge issued an order Friday stating that an unnamed judge among the 29 active members of the circuit court has requested an en banc hearing — meaning that eleven judges or possibly the entire panel would hear the case, rather than the select three-judge panel that issued the 3-0 ruling against Trump’s executive order.

Procedurally, any judge on the circuit court may sua sponte — on the judge’s own initiative without a party asking or moving the court through any written pleadings — request a reconsideration before a fuller bench, rather than the select panel.

The Ninth Circuit’s en banc proceedings typically only consist of eleven judges, as the controlling federal law allows that for circuits with more than 15 judges to limit en banc hearings to “such number of members of its en banc courts as may be prescribed by rule of the court of appeals.” Currently, per the Ninth Circuit’s Rule 35-3, eleven judges sit for a “limited en banc court,” which usually include the chief judge. Parties may suggest or request a hearing before the whole panel of 29 judges; however, the Ninth Circuit has never granted an en banc hearing before the entire panel.

The court’s February 10 order requires the parties to file briefs by 11:00 a.m. Pacific time on Thursday, February 16, arguing their respective positions only on whether the matter should be reconsidered before the fuller panel. Importantly, amicus (or “friend of the court”) briefs may also be filed by interested organizations on either side, seeking to advise the court whether or not to grant a rehearing.

En banc proceedings are not typical, but usually occur in cases that are considered extremely important because of the parties, the precedent value, or because they are particularly noteworthy. This case is particularly suited for a fuller panel review because of the serious issue and extreme importance to the country.

After the briefs are filed Thursday, the members of the court will vote on whether the matter should be reconsidered, and if a majority of the active judges vote to rehear the matter, then President Trump may get another day in court.

This type of reconsideration will be critically important to Trump, especially because his newly confirmed attorney general, Jeff Sessions, and his deputies will be able to navigate the case and argue on behalf of the executive order’s constitutionality. A rehearing presents a very good opportunity for Trump to essentially test his case before a fuller panel that doesn’t carry the same weight as a Supreme Court decision, particularly when the High Court still consists of only eight justices.

If Trump wins with an en banc ruling, it will be a significant victory for the executive administration and will be valuable to the Ninth Circuit’s weakening reputation for legitimacy and fairness. If he loses, it may provide more grounding to simply redraft the executive order and cure the supposed constitutional problems.

— Jenna Ellis is a constitutional-law and criminal-defense attorney, a law professor at Colorado Christian University, where she directs the legal-studies program, a fellow at the Centennial Institute, and the author of The Legal Basis for a Moral Constitution.