A federal appeals court getting set to review a Maryland judge’s order against President Trump’s immigration restrictions is considering bypassing a three-judge panel and to hear the case before all 15 active judges. The process, rarely used in that court, could speed up the process considerably.
In a brief order issued Monday afternoon, the U.S. Court of Appeals for the Fourth Circuit told lawyers on both sides of the case to offer their views, by Thursday, on whether the case should be heard en banc. The court acted on its own, probably in response to a request from one of its judges.
It would take the votes of at least eight of the Fourth Circuit Court’s active judges to put the case before the full bench. If initial en banc review is granted, it could speed this particular case toward the Supreme Court by bypassing one step in the usual procedure.
The case of International Refugee Assistance Project v. Trump is an appeal by the Trump Administration challenging a ruling this month by U.S. District Judge Theodore D. Chuang of Greenbelt, MD, blocking enforcement of the presidential order that would impose a 90-day suspension on entry into this country of any foreign nationals from six Mideast nations that have majority Muslim populations.
Judge Chuang, responding to a challenge by two refugee resettlement organizations and several individuals, ruled that the challengers were likely to win ultimately on their point that the suspension order violates the Constitution by discriminating against Muslims based on their religion.
President Trump and his aides drafted a revised executive order after the original version was blocked by the U.S. Court of Appeals for the Ninth Circuit.
A group of 11 states, along with the governor of a twelfth, joined in the Fourth Circuit Court as a friend-of-the-court, urging the judges not to follow what the Ninth Circuit Court had done on the initial Trump order.
The Fourth Circuit Court is considering two issues, apparently separately: first, whether to put Judge Chuang’s ruling on hold while the appeal proceeds, and, second, whether to uphold the legality of the revised executive order
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com, where this story first appeared.