According to the Washington Post:
“The Trump administration filed court papers Friday hoping to salvage its second version of a travel ban, after two judges in separate cases this week found it likely violated the Constitution.
The Justice Department filed legal papers in federal court in Maryland, setting up a new showdown in the U.S. Court of Appeals for the 4th Circuit, located in Richmond.
Earlier this week, federal judges in Hawaii and Maryland issued orders against the travel ban, finding it violated the First Amendment by disfavoring a particular religion. If the Justice Department had appealed the Hawaii order, the case would have gone to the same San Francisco-based appeals court that rejected an earlier version of the travel ban.”
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What’s the Government’s strategy here?
Well, we can surmise from Circuit Judge Bybee’s recent dissent that only 5 of the 29 active Circuit Judges in the 9th Circuit were willing to overrule the TRO imposed by the U.S. District Judge and upheld by a unanimous 9th Circuit panel in State of Washington v. Trump, involving “Travel Ban 1.0.” And, according to reports, none of those Judges would be on this month’s “Motions Panel” which would get the appeal from the TRO on “Travel Ban 2.0” issued by the U.S. District Court in State of Hawaii v. Trump. That makes a Government appeal in Hawaii almost a dead bang “two-time loser” in the 9th Circuit.
So, from the Government’s standpoint, why not test the waters in a different Circuit? And, if the Administration’s position does prevail in the 4th Circuit, there then would be a “split in circuits.” That, in turn, would be a factor that normally increases the chances that the Supreme Court would agree to review the case. Generally, the Court tries to achieve nationwide uniformity on important or controversial questions of law.
PWS
03/17/17