This column by ACRU Fellow Ken Klukowski was published April 12, 2017 by Breitbart.
Monday the U.S. Court of Appeals for the Fourth Circuit took the extremely rare step of ordering that the constitutional challenge to President Donald Trump’s immigration travel order would be heard by all 15 judges on the court, making it very unlikely that the president will prevail unless the Supreme Court intervenes.
Federal appeals are heard by three-judge panels chosen at random. Under very rare circumstances, once a panel has decided a case, the full court can grant the losing party’s request to rehear the case en banc, meaning all of the active-service judges will rehear the case together.
In this case, the Richmond, VA-based court voted on its own initiative to make the initial hearing of the case an en banc hearing. Such a procedural move is exceedingly unusual, almost unheard-of.
Barack Obama had an unusually high number of appointments to the Fourth Circuit because Senate Democrats blocked many of George W. Bush’s nominees to that appellate court. As a consequence, the 15-judge appeals court is comprised of nine liberal judges, three moderates, and three conservatives.
While it was possible that President Donald Trump may have drawn a random three-judge panel that would be friendly to his Executive Order 13,780, it is extremely unlikely that the full Fourth Circuit sitting en banc will look favorably on his order.
Oral arguments are currently scheduled for May 8.
The case is International Refugee Assistance Project v. Trump, No. 17-1351.