“The panel’s errors are many and obvious. ... and stands contrary to well-established separation-of-powers principles.”
In February, a panel of three judges from the 9th Circuit heard arguments via telephone for and against the ban. The judges ruled that the ban was illegal and stopped it.
The dissent castigated the other judges for ignoring U.S. Supreme Court decisions, acts of Congress, the Constitution and its own 9th Circuit decisions in ruling against the ban.
In fact, the opinion said that the previous order should be dumped because it was so bad, it shouldn’t be referred to in any future case:
We have an obligation to correct our own errors, particularly when those errors so confound Supreme Court and Ninth Circuit precedent that neither we nor our district courts will know what law to apply in the future.
We should have exercised that discretion in this case because the panel made a fundamental error. It neglected or overlooked critical cases by the Supreme Court and by our court making clear that when we are reviewing decisions about who may be admitted into the United States, we must defer to the judgment of the political branches.
Attorney Robert Barnes wrote in Lawnewz that the dissent was so thorough a pummeling of the previous opinion that it stood as a reminder of "just how embarrassingly bad the prior 9th Circuit stay panel decision was on Trump’s travel ban”:
The language of the opinion was almost Scalian: the five Ninth Circuit judges noted their “obligation to correct” the “manifest” errors so bad that the “fundamental” errors “confound Supreme Court and Ninth Circuit precedent.” The district court questioned any judge issuing a “nationwide TRO” “without making findings of fact or conclusions of law” on the merits of the matter and conducting published opinions on seminal matters of national security based on “oral argument by phone involving four time zones.”
The five judges wrote that halting the travel ban was “unreasoned,” a “clear misstatement of law” and “ignore[d] the realities of our world” and that they had a duty to set the record straight:
Above all, in a democracy, we have the duty to preserve the liberty of the people by keeping the enormous powers of the national government separated. We are judges, not Platonic Guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress. We will yet regret not having taken this case en banc to keep those lines of authority straight.
Wednesday, a Hawaii judge ruled against Trump’s rewritten travel ban.
President Trump has vowed to take his travel ban cases to the U.S. Supreme Court.