Friday Night Fights — At The Ninth Circuit

Friday Night Fights — At The Ninth Circuit

The Ninth Circuit courthouse in Pasadena.

The Ninth Circuit courthouse in Pasadena.

If I told you earlier this week that a headline-making brawl would erupt on Friday night, you might have predicted a bar fight between inebriated partygoers on St. Patrick’s Day. But the fight I’m talking about is far more interesting — and important. It comes to us from the Ninth Circuit, and it pits leading legal minds against each other on one of the biggest issues of the day: the constitutionality of President Donald Trump’s immigration orders.

On Wednesday, the Ninth Circuit denied en banc rehearing (i.e., declined to reconsider) the three-judge panel opinion that upheld the blocking of President Trump’s executive order on immigration (the first one, not Travel Ban 2.0). So that opinion remains on the books and is good law in the Ninth Circuit, even though the litigation that spawned it went away (dismissed on the government’s motion).

Judge Jay Bybee filed a dissent from denial of rehearing en banc — aka a “dissental” — arguing that the Ninth Circuit sitting en banc should have vacated the panel opinion: “We have an obligation to correct our own errors, particularly when those errors so confound Supreme Court and Ninth Circuit precedent that neither we nor our district courts will know what law to apply in the future.”[1]

Judge Stephen Reinhardt, liberal lion of the Ninth Circuit, filed a one-paragraph concurrence, taking a dig at President Trump’s criticisms of the judiciary: “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.”

One might have wondered: what does Judge Alex Kozinski, one of the Ninth Circuit’s leading (and few) conservatives, have to say about all this? Judge Kozinski is not exactly a wallflower. Or what about Judge Carlos Bea, another prominent voice on the right side of the court? The initial order denying rehearing closed with this line: “Filings by other judges may follow.”

Tonight, the Ninth Circuit delivered on that promise (or threat). If you’re looking for some fun weekend reading, curl up with the 51 pages of opinions from five separate Ninth Circuit judges. Judge Bybee’s dissental and Judge Reinhardt’s concurrence are joined by a dissent from Judge Kozinski, focused on the Establishment Clause; a dissent from Judge Bea, focused on the states’ standing (or lack thereof); and a concurrence from Judge Marsha Berzon, focused on, well, chiding the dissenters for writing so much.

(This should be it — at least for now, at least with respect to the Ninth Circuit’s ruling on the initial travel ban. Tonight’s order concludes, with a hint of exhaustion, “No further opinions will be filed.”)

The barnburner among the new opinions is, not surprisingly, Judge Kozinski’s. The dissental is vintage AK, forceful and colorful. Here’s how it opens:

I write separately to highlight two peculiar features of the panel’s opinion. First, the panel’s reasoning rests solely on Due Process. But the vast majority of foreigners covered by the executive order have no Due Process rights. Nevertheless, the district court enjoined the order’s travel provisions in their entirety, even as applied to the millions of aliens who have no constitutional rights whatsoever because they have never set foot on American soil.

So in this case, according to Judge Kozinski, “We could have approved the injunction as to the relatively few who have lawful status in the United States and allowed the executive order to cover everyone else.”

His take on what his colleagues did, in allowing the “extraordinarily broad restraining order” to stand in its entirety? “This St. Bernard is being wagged by a flea.”

But the Due Process analysis isn’t Judge Kozinski’s only beef with the panel opinion:

[This] brings me to the second peculiar feature of the opinion, a topic about which the panel says all too much: the Establishment Clause….

[Looking to informal and unofficial statements from President Trump to evaluate the constitutionality of the travel ban] is folly. Candidates say many things on the campaign trail; they are often contradictory or inflammatory. No shortage of dark purpose can be found by sifting through the daily promises of a drowning candidate, when in truth the poor shlub’s only intention is to get elected. No Supreme Court case—indeed no case anywhere that I am aware of—sweeps so widely in probing politicians for unconstitutional motives. And why stop with the campaign? Personal histories, public and private, can become a scavenger hunt for statements that a clever lawyer can characterize as proof of a -phobia or an -ism, with the prefix depending on the constitutional challenge of the day.

This is why taking into account “Muslim ban” comments from Donald Trump or his advisors when evaluating his actions as president might prove too much. Over the course of his term, President Trump will surely undertake many actions that affect Muslims or predominantly Muslim nations in a disproportionate way. These actions can’t all violate the Establishment Clause simply because of some extraneous comments made by Trump back when he was a candidate, comments not reflected in the text of the order in question. As Harvard law professor Alan Dershowitz recently wrote:

Under that reasoning [evaluating Trump’s actions based on his anti-Muslim comments], had the identical executive order been issued by President Obama, it would have been constitutional. But because it was issued by President Trump, it is unconstitutional. Indeed any executive order issued by President Trump dealing with travel from Muslim countries would be constitutionally suspect because of what candidate Trump said.

In my view, that is a bridge too far. It turns constitutional analysis into psychoanalysis, requiring that the motives of the president be probed.

This is why, as Judge Bybee put it in his dissent, if a president’s actions are supported by a “facially legitimate and bona fide” reason, judges “do not get to peek behind the curtain.”

Judge Kozinski’s lively dissent could not go unremarked upon by his principal antagonist and frequent sparring partner, Judge Reinhardt, who added this paragraph to his previously filed concurrence:

Judge Kozinski’s diatribe, filed today, confirms that a small group of judges, having failed in their effort to undo this court’s decision with respect to President Trump’s first Executive Order, now seek on their own, under the guise of a dissent from the denial of en banc rehearing of an order of voluntary dismissal, to decide the constitutionality of a second Executive Order that is not before this court. That is hardly the way the judiciary functions. Peculiar indeed!

“Peculiar indeed!” Give Judge Reinhardt props for turning Judge Kozinski’s use of “peculiar” around on him. (But critics of Reinhardt might find it a bit rich for the frequently reversed jurist to be giving lectures on “the way the judiciary functions.”)

I do think that Judge Reinhardt has an arguably valid point here (and Judge Berzon makes the same argument in her concurrence too). There’s no longer a case or controversy in the Ninth Circuit with respect to the first travel ban; the court granted the government’s unopposed motion to dismiss its appeal, and then the original order got superseded by Travel Ban 2.0. So the dozens of pages of dissents are somewhat superfluous — and for conservatives who talk frequently about judicial restraint, the perils of advisory opinions, and the evils of judicial overreach, this could be problematic.

On the other hand, we are living in unusual times, and our nation is grappling with highly complex and contested issues. We all benefit from having these issues explored in depth and from having both sides of the debate represented.

So I can’t fault the dissenters too much for spilling some extra ink here. Judges around the country who will be confronting these issues in the weeks and months ahead will surely appreciate having a broader range of perspectives. And I suspect that if these issues percolate up to the U.S. Supreme Court, the justices (and their clerks) will also be grateful for the robust debate — a debate that would never have happened if everyone on the Ninth Circuit had just gone along quietly with the original opinion.

When it comes to faulty legal reasoning, if you see something, say something.

[1]If you haven’t already read Judge Bybee’s opinion, I commend it to you. It’s well reasoned and well written, and it makes a strong case that the original travel ban was, as Judge Bybee put it, “well within the powers of the presidency.” (See also this analysis by Tenth Circuit judge turned Stanford law professor Michael McConnell.)

The revised executive order is even more defensible — which might be why Professor Dershowitz predicts that “the Supreme Court, if it gets the case, will find the new executive order constitutional.” Unless the Court decides to overrule some of its prior precedents — which is, of course, its prerogative (but not that of lower courts) — I wonder if the vote might even be 6-2 (with Justices Breyer and Kagan, the least partisan of the four liberals, coming over to join the four conservatives). One can question the wisdom of the travel ban as a policy matter; as countless outlets have noted, no refugee from any of these six countries has successfully carried out a terrorist attack in the U.S., and the ban has serious collateral consequences. But the case for its constitutionality is more compelling.

State of Washington v. Trump: Amended Order [U.S. Court of Appeals for the Ninth Circuit]
State of Washington v. Trump: Order [U.S. Court of Appeals for the Ninth Circuit]
Dershowitz: Why the Supreme Court will uphold Trump’s travel ban [The Hill]

DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at


Published at Sat, 18 Mar 2017 04:38:23 +0000

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