Yesterday, the Fifth Circuit granted rehearing en banc in W.M.M. v. Trump. This case, formerly known as A.A.R.P. v. Trump, presents a challenge to President Trump's use of the Alien Enemies Act to remove certain aliens. On September 2, the merits panel opinion ruled against Trump. Judge Southwick wrote the majority opinion, and he was joined by Judge Ramirez. Judge Oldham wrote a blistering dissent.
At the time, I wondered whether the Solicitor General would simply seek certiorari, or seek rehearing en banc. The former option would get a resolution sooner, but the government may have worried that the Court would not grant review in the absence of a circuit split. So filing an en banc petition was probably the safer bet. And indeed, the government sought rehearing en banc, which was granted.
The Fifth Circuit has seventeen active members, which means that at least nine members voted to rehear the case. There are decent odds that if nine members vote to rehear the case, then nine members will vote to reverse the panel opinion, but those sorts of predictions are tough to make. And as often happens on the Fifth Circuit, the en banc court may fracture, and there will be a judgment, but not a single controlling opinion. One judge usually simply concurs in judgment, making a majority even tougher to cobble together.
