(WASHINGTON) -- President Donald Trump's second executive order limiting travel from some Middle Eastern and African countries faces another legal challenge on Monday. The ban was already halted temporarily on two occasions by federal judges in March, but Monday will mark the first time an argument on the revised order reaches a court of appeals.
Here's what you need to know ahead of Monday's arguments:
What to expect on Monday
Lawyers will argue their case “en banc” before a panel of all active and eligible judges of the Fourth Circuit Court of Appeals -- which covers Maryland, North Carolina, South Carolina, Virginia and West Virginia. Each side gets half an hour to argue its case, but the judges can extend that time for questioning.
There are 15 active judges on the Fourth Circuit and it will be announced early Monday morning whether any of the 15 will recuse themselves.
According to the Fourth Circuit's clerk, it’s “very rare” that an initial hearing is heard “en banc” in the circuit. Typically, cases are first heard by a three-judge panel. An “en banc” hearing is only granted when a majority of active judges determine that the proceedings involve a question of “exceptional importance” or to “maintain uniformity of the court’s decisions.”
It is highly unlikely that the judges would issue a ruling on Monday, but a decision could come in the next few weeks.
What happens after?
Monday marks the first time the revised travel ban is heard before an appeals court. The government is appealing U.S. District Judge Theodore Chuang’s March 15 ruling in Maryland that granted a nationwide preliminary injunction on one part of the revised travel ban -- section 2(c), which bars entry of nationals who aren’t U.S. permanent residents from six Muslim-majority countries for 90 days. Chuang did not enjoin any other part of the executive order.
Separately, a different group of plaintiffs will face off against the government before a three-judge panel in the Ninth Circuit on May 15. In that case, the government is appealing the ruling by Hawaii District Court Judge Derrick Watson that imposes a nationwide preliminary injunction on two provisions of the travel ban: the ban against nationals from six Muslim majority countries for 90 days and the 120-day refugee ban. Whichever side loses before the Ninth Circuit’s three-judge panel can ask for a rehearing “en banc” before all active Ninth Circuit judges, or the judges themselves can vote for a rehearing. The parties could also choose to skip that step and appeal to the U.S. Supreme Court.
If one of the circuit courts rules for the government before the other has decided, the travel ban would still remain blocked because a circuit court does not supersede a district court from a different jurisdiction.
Conflicting district court decisions could lead to the case moving to the U.S. Supreme Court more quickly.
There are additional cases on the executive order pending throughout the country, but these two cases are the first to be heard on appeal.
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