Trump Kicks Executive Order Back to 9th District Judges

Administration asks entire liberal appellate court to reevaluate decision on immigration action

by Jim Stinson | Updated 14 Feb 2017 at 7:14 AM

President Donald Trump and his Justice Department will not be taking his executive order on a travel ban to the Supreme Court — for now.

Trump’s attorneys filed paperwork in the U.S. 9th Circuit Court of Appeals to reconsider the suspension of his order that banned for 90 days travel from seven terrorism-plagued countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

For Trump, the option has some benefits. It allows him to delay a Supreme Court showdown.

The executive order also indefinitely stopped refugees from coming from Syria.

The 9th Circuit upheld a lower court order suspending Trump’s action on Thursday.

The Trump administration will now ask for an “en banc” hearing. That means 10 or 11 of the court’s 29 judges would hear the case, instead of the initial three who ruled on it — 15 of the 29 judges must vote to have a rehearing.

For Trump, the option has some benefits.

It allows the president to delay a Supreme Court showdown. The high court is evenly divided between liberals and conservatives, 4-4. Taking the executive order in its current form to the Supreme Court runs the further risk of allowing a precedent to be set if the justices turn against the administration.

Going back to the 9th also keeps alive the option to rewrite the order in question and correct its legal deficiencies with a new order. That might not be possible if the Supreme Court gets to five votes against the executive order.

Former U.S. Judge Andrew Napolitano, a Trump friend, told Fox News Monday that he wants Trump to tear up the old, flawed order and write a new temporary travel ban, minus the legal flaws.

  1. Donald Trump
  2. immigration
  3. Ninth Circuit
  4. refugee
  5. Supreme Court
  6. travel ban
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