While its been initially reported that the Trump White House won’t file an appeal to the Supreme Court, Chief of Staff Reince Priebus said that all options were on the table, according to The Washington Post.
This afternoon, it was reported that not even an appeal for an en banc hearing with the Ninth Circuit would be considered, instead focusing their efforts to fight it at the lower level.
On Air Force One, the president said that issuing a new order could be coming soon, possibly Monday or Tuesday—but reiterated his confidence that he would win the legal battle that tied up his executive order on immigration, specifically the so-called travel ban.
One of the possible changes is explicit language that the travel moratorium won’t be applied to legal residents from those countries, which was one of the points of confusion when this order was issued.
That brings us to our latest twist. A federal judge in the Ninth Circuit has requested an en banc hearing, even though no one requested it, according to LawNewz. Such a request from the court is well within its authority. The site added that this is still a dead end. It’s one of the most liberal circuit courts in the country and a majority of the judges (25 active) have to agree for the en banc hearing to move forward. That’s unlikely:
Chief Judge Sidney Thomas of the 9th Circuit Court has instructed both Trump’s DOJ team and lawyers for the State of Washington and Minnesota to file briefs due by Thursday February 16th, stating whether they believe the motion should be considered en banc. To get a rehearing, a majority of the 25 active judges on the court would need to vote in favor. Some legal experts contend however that it is unlikely that a majority of judges (most of whom were appointed by Democrats) would agree to this.