[U] Muslim Ban 2.0 Appeals — Where Things Stand: In The Fourth Circuit, Late Night, On April 3-4, 2017

Updated: 04.05.2017 @ 10 AM EDT — The Hawaii version will be argued in the Ninth Circuit on the morning of May 15th, per this overnight order: . . .Oral Argument on Monday, May 15, 2017 – 09:30 A.M. – SE 7th Flr Courtroom 2 – Seattle, Washington. . . . [End updated portion.]

I thought I’d just catch the readership up — on where things stand, on both coasts tonight — on the Trump Administration’s efforts to slip out from under the nationwide injunctions against “Muslim Ban 2.0”.

Despite the way FoxNews reports on various developments in the Fourth Circuit (a circuit more favorable to Mr. Trump’s views of executive authority) — the game will actually be won (or far less probably, lost) in the Ninth Circuit — and then finally decided. . . by — that’s right — the Supremes. That is so, because the Ninth will almost certainly decide more quickly than the Fourth whether and when — if ever — the provisions of Muslim Ban 2.0 might be able to begin. And it is a near certainty that the Ninth will leave things as they are, while an appeal to the Supremes plays out. Where they are is. . . halted. So there will be no banning of Muslims, or any other refugees, in the next year or so, in my estimation — even if the Fourth Circuit were to side with 45, shortly. From today’s briefs — in the Fourth:

. . . .The government’s stay motion is an exercise in avoidance. It is written as if the Executive Order at issue in this case sprang to life on March 6, 2017 on a blank slate, even though the Order expressly revokes and replaces a prior Executive Order that was the subject of extensive litigation. See Executive Order No. 13780, §§ 1(i), 1(c), 13. And it does not mention the ongoing case of Hawaii v. Trump, in which the district court issued nationwide relief that overlaps with the preliminary injunction at issue here.

The government thus avoids acknowledging its own delays in re-issuing the Executive Order and advancing this and related litigation. But in fact, the government has tolerated injunctions of its travel ban Orders for more than seven weeks so far, and since submitting its stay motion in this case has proposed a briefing schedule in Hawaii ensuring that the provision at issue will remain enjoined nationwide for at least four more weeks regardless of whether this Court grants a stay. Against this backdrop, any claim that the government urgently needs a stay during this highly expedited appeal beggars belief. . . .

It is the government’s burden to justify the extraordinary interim relief it seeks. Taking the facts and the law as they actually are, the government cannot meet its burden on any element of the stay standard, much less all of them. . . .

Meanwhile, back in the Ninth — the following expedited briefing schedule will obtain:

. . .The briefing schedule shall proceed as follows: the opening brief and the motion for a stay pending appeal are due April 7, 2017; the answering brief and the response to the motion for a stay pending appeal are due April 21, 2017; and the optional reply brief and the reply in support of the motion for a stay pending appeal are due April 28, 2017. Any amicus briefs are due April 21, 2017. . . .

This case shall be heard by a panel composed of three members of this court. See 9th Cir. Gen. Order 3.3(h). . . .

Sleep well, all you little round river rocks. . . smile. . . .


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