Today, the Ninth Circuit declined to consider en banc (by a full court) whether to vacate the published order blocking President Trump’s first executive order restricting travel from seven Muslin-majority countires. Since the Ninth Circuit issued its decision last month, President Trump issued a new executive order that supposedly corrects the old order’s problems.* The new order even removes Iraq from the list of countries whose nationals are not allowed entry into the United States. Thus, the case heard by the Ninth Circuit is moot.
Judge Jay Bybee authored a dissent from rehearing en banc to consider vacating the panel’s decision. In the opinion joined by four other judges, Judge Bybee thoroughly argued that the panel got the decision wrong. Quickly reading through the opinion, I still think that the panel got the decision right. President Trump’s executive order likely violated the Due Process Clause because it threw the legal status of green card holders from the seven Muslim-majority countries into flux without any process. Indeed, this is confirmed by the panic at airports across the country show that the order was facially problematic.
Nhan Stop 