The Ninth Circuit faces uncertain future as immigration case looms

From National Constitution Center, February 7, 2017

The Ninth Circuit Court of Appeals is getting a lot of attention these days in the battle over President Trump’s immigration executive order. But the court soon could be split up into two courts, if some lawmakers have their way.

This weekend, two judges on the Ninth Circuit appeals bench asked for more information from the Trump administration and its opponents about the constitutionality of the executive order, after a federal judge in Washington state issued a temporary restraining order.

The Ninth Circuit appeals court could be the last stop in the quickly evolving legal struggle over Trump’s order before the dispute gets to the Supreme Court. But it won’t be the last time the Ninth Circuit Court of Appeals is in the national news.

Shortly after November’s general election, congressional Republicans started working on a bill that would remove six states from the Ninth Circuit to create a new federal judicial district. (A similar bill was stalled in Congress last year.)

Currently, the Ninth Circuit Court of Appeals has jurisdiction over cases originating in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon and Washington state that pertain to federal laws and issues related to federal constitutional claims.

The newly created 12th Circuit would include Alaska, Arizona, Idaho, Montana, Nevada, and Washington state. Representative Mike Simpson of Idaho and Senators Jeff Flake and John McCain of Arizona are leading the current effort to get the legislation approved in Congress.

In a statement, Senator Flake said the action was needed because the Ninth Circuit is “oversized and overworked.” Flake cited the size of the court’s workload – it hears 33 percent more cases than any other federal circuit – and the failure rate of its cases accepted by the Supreme Court as reasons for the move.

“With problems like these, we are left to ask: Is the Ninth Circuit simply too big to succeed? If you are an Arizonan, the answer is unquestionably yes,” Flake said.

Critics of the move point to the Ninth Circuit’s reputation as one of the more liberal federal circuits in the country and that the move is an effort to create a federal district more friendly to Arizona and some other states.

The Ninth Circuit currently has 18 judges appointed by Democrats and seven appointed by Republicans, with four vacancies that can be filled by President Trump. Currently, seven of the nine judges in the prospective 12th Circuit states were appointed by Democratic Presidents.

The federal judiciary is organized into 12 regional circuit court systems that combine various states and the District of Columbia, and a Federal Circuit appeals court based in Washington, D.C., that hears dispute from other federal courts.

The last time a new Circuit Court Of Appeals was created was back in 1980, when Congress passed an act that created the 11th Circuit Court of Appeals, with Alabama, Florida and George moving from the Fifth Circuit into the 11th Circuit. The former Fifth Circuit had 26 judges and also faced scheduling and logistical problems.

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