A Fifth Circuit Disgrantle in the Alien Enemies Act Case

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 Ac 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 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 judgmnet, but not a single controlling opinion. One judge usually justs concurs in judgment, making a majority even tougher to cobble together.

After the court granted rehearing, Judge Southwick issued an usual opinion: he dissented from the grant of rehearing en banc.

A prompt, final resolution of this case is in the legitimate interests of all parties, whatever lesser interests of either side of the litigation might be served by the delay of en banc in this court. It is, I believe, also in the country’s best interest that additional, necessarily inconclusive, inferior-court determinations not delay the Supreme Court’s reclaiming this case. I therefore respectfully dissent from the grant of rehearing en banc.

We all know what a dissental is. There is also a disgrantle, as Judge VanDyke explained: a dissent from the grant of rehearing en banc. My colleague Eugene Volokh described the disgrantle as a “nonce word,” which is a “on one specific occasion or in one specific text or writer’s works.” Well, I’m using disgrantle here.

I searched the Fifth Circuit database for the phrase “dissenting from the grant of rehearing en banc.” No other hits came up. I know of at least one instance in which this mechanism was used. Way back in 2008, Judge Smith dissented from the grant of rehearing en banc, though he styled his opinion as just a dissent: United States v. Seale, 550 F.3d 377 (5th Cir. 2008). I’m sure there are other such cases, but they are rare.

I am aware of one case where four members of the Supreme Court dissented from the grant of certiorari: American Tradition Partnership v. Bullock (2012)

I also want to flag Judge Ho’s brief concurrence in W.M.M.:

Our colleague opposes rehearing en banc on grounds of delay. But the burden of any delay falls on the Government. And the Government asked for rehearing en banc, rather than seek certiorari in the Supreme Court. Perhaps we could have minimized delay by declaring last year in United States v. Abbott, 110 F.4th 700 (5th Cir. 2024), that the Judiciary has no business telling the Executive that it can’t treat incursions of illegal aliens as an invasion.1 But we are where we are. The issue is obviously compelling. I concur in the grant of rehearing en banc.

Well before Trump came into office, Judge Ho opined that determinations under the Invasion Clause were not justiciable. (See Rob Natelson’s post on this opinion.) Judge Ho was well ahead of the curve. If Judge Ho was right, then W.M.M. becomes a much easier case. Ho’s view did not receive any other votes in 2024. And I was surprised that Judge Oldham’s dissent in W.M.M. did not cite Ho’s concurrence. We will see what happens on the en banc court this time around.

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