Just as we wrote in early February in “Game changer in the 9th Circuit? – National Media silent” and “The 9th Circuit – more to the story” we believed the decision was faulty and were surprised that a request for sua sponte request for it to be considered en banc was made. We also talked about the Spokio v. Robins case which dealt with the need to prove standing in order maintain an action in federal court and the fact it was never considered in the original decision – and was never raised in this dissention letter.
Now we have the strongly worded letter of dissenting Justices, which paints a picture making the original decision even more perplexing.
While we understand that Federal Justices interpret the law differently on the Travel Ban issue, this document makes that point very clear, with some key points taken from it:
- consideration of the case en banc did not happen and the letter was to dissent from their failure to correct the panel’s manifest error
- it contained good background on the President’s authority to exclude aliens
- it should have been review because the panel made a fundamental error
- the panel’s analysis conflicts irreconcilably with their previous cases and they had an obligation to vacate the opinion to resolve that conflict and provide consistent guidance to district courts and future panels of the appeals court
- the panels errors were many and obvious . . . and stands contrary to well-established separation-of-powers principles
- they even wrote a little about public discourse and personal attacks on the Justices
Now, with the Hawaii decision on Travel Ban 2.0, which if appealed, is also in the US Court of Appeals for the Ninth Circuit. The outcome of any appeal could rest on which three individual Justices are selected to hear the appeal. Whatever the results of any appeal, it will surely be further appealed to the US Supreme Court.
Enjoy reading this letter, which starts on page 2: