Last month, a 9th Circuit panel concluded that President Trump’s immigration executive order was likely unconstitutional. The administration withdrew that order, and substituted another, which is now being challenged; but the panel decision remained on the books, as binding law within the 9th Circuit. Some judges’ call for en banc rehearing (i.e., rehearing by 11 of the 9th Circuit’s judges, rather than the original three) also remained pending.
On Wednesday, the call for rehearing was denied, because it didn’t get a majority vote of the 9th Circuit judges; but five judges — Judge Bybee, joined by Judges Kozinski, Callahan, Bea, and Ikuta — issued an opinion arguing that rehearing should have been granted, and that the panel decision was wrong and should therefore be vacated. The opinion is worth reading, I think (alongside the panel opinion, if you hadn’t read that yet), and strikes me as pretty persuasive.
This particular case isn’t going to go up to the Supreme Court, because the order is moot — there’s no controversy left between the parties; the controversy is among 9th Circuit judges about whether a 9th Circuit precedent should be vacated, but the Supreme Court won’t be concerned about that particular dispute. However, the dispute about the revised executive order will likely go up to the Supreme Court (especially if at least one circuit court concludes that the revised order is likewise invalid, perhaps citing the earlier 9th Circuit panel opinion as precedent). And at that point this five-judge dissent will be influential, as a major and detailed argument for the constitutionality of such executive orders.
Thanks to Howard Bashman (How Appealing) for the pointer.