It seems like a million years ago give the fast flow of news cycles, but you may recall that a lone unidentified Judge on the 9th Circuit Court of Appeals called for a vote by the full court as to whether to hear en banc the government’s emergency motion for a stay pending appeal.

That motion had been denied by a three-judge panel, which refused even to narrow the sweeping District Court injunction against the immigration Executive Order.

Since then, Trump has made clear that there will be a new Executive Order issued next week meant to address judicial rulings against the prior Executive Order. Apparently there also were similar representations to the Court in a supplemental brief:

In other circumstances, the panel’s multiple errors in sustaining a substantially overbroad injunction, and thereby prohibiting enforcement of a lawful Executive Order designed to protect the Nation’s security, would warrant en banc review by this Court on

the merits. See Fed. R. App. P. 35(a)(2). In light of the forthcoming promulgation of a new superseding Executive Order, however, such review is not called for at this time. Rather, the proper course in these unique circumstances, which have involved highly expedited preliminary consideration and limited briefing of detailed issues concerning an Executive Order whose scope was misapprehended, would be simply to vacate the panel’s opinion when the new Order is promulgated. Cf. Circuit Advisory Committee Note Rules 35-1 to 35-3 (specifying that panel’s decision is no longer precedential when rehearing en banc is granted). To facilitate that result, the government will promptly file with the Court the new Order as soon as it has been issued.

The 9th Circuit issued an Order yesterday staying the en banc proceedings pending further government action.

A revised or new Executive Order doesn’t mean the litigation is over. I have little doubt that the state plaintiffs will claim that a new Executive Order violates the terms of the District Court injunction. That will be an interesting issue since the injunction is so sweeping. The issue will be whether the injunctions prohibits implementation of the first Executive Order, or prohibits similar conduct under a new Executive Order.

Also, there is a doctrine of “voluntary cessation” under which voluntarily stopping illegal conduct doesn’t necessarily moot the case, where the conduct is likely to recur.

So, proceedings aren’t necessarily done before the 9th Circuit or Judge Robart.



