SAN FRANCISCO — It’s pretty clear the Trump administration isn’t fond of the U.S. Court of Appeals for the Ninth Circuit.
President Donald Trump took to Twitter to say “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” after a Ninth Circuit panel last week found his executive order suspending immigration from seven predominantly Muslim countries unconstitutional.
The president took aim at the court again on Thursday.
Between announcing his nomination of R. Alexander Acosta as labor secretary and referring to his White House as a “fine-tuned machine” at a Thursday press conference, Trump took a shot at the Ninth Circuit for being “overturned at a record number.”
“I have heard 80 percent, I find that hard to believe, that is just a number I heard, that they are overturned 80 percent of the time,” said Trump, according to a transcript. “I think that circuit is—that circuit is in chaos and that circuit is frankly in turmoil.”
Despite its reputation as liberal outlier, the Ninth Circuit has in recent years fared better in seeing its decisions upheld at the U.S. Supreme Court than it did in the past. According to an analysis of decisions from 2010-15 from Scotusblog, the Ninth Circuit was flipped 79 percent of the time by the high court, as compared to 87 percent for the Sixth Circuit and 85 percent for the Eleventh Circuit.
Trump administration lawyers also took aim at the Ninth Circuit in their own way on Thursday, but in much less colorful language than the president’s.
In court papers filed Thursday shortly after the president spoke, DOJ lawyers wrote that a Ninth Circuit panel “upend[ed] fundamental principles of judicial restraint” by keeping in place a ruling barring enforcement of the executive order.
DOJ lawyers asked the full court to vacate the Ninth Circuit panel opinion from Feb. 9 and forego rehearing the appeal while the executive order is revised “to eliminate what the panel erroneously thought were constitutional concerns.”
Thursday’s spotlight on the court comes after an unidentified Ninth Circuit judge on Feb. 10 called for a vote on whether to rehear the travel ban appeal en banc. Both the Trump administration and the plaintiffs in the case—the states of Washington and Minnesota—said in court filings Thursday they’d prefer that the court not take the case en banc at this point.
“Under the unusual circumstances presented here,” the DOJ lawyers wrote, “the government respectfully submits that the most appropriate course would be for the court to hold its consideration of the case until the president issues the new order and then vacate the panel’s preliminary decision.”
Lawyers for the states also urged the court to not grant en banc review, claiming that the panel decided correctly to leave in place a ruling from U.S. District Judge James Robart of the Western District of Washington blocking the executive order.
“Granting en banc review would simply delay the merits of the preliminary injunction appeal to no substantive purpose,” they wrote.
On Thursday evening the Ninth Circuit stayed proceedings, referencing the government’s statement that Trump plans to issue a new executive order.