On Tuesday, April 25th, the 9th Circuit Court ruled against President Trump’s executive order to halt federal funding for sanctuary cities. In response, Trump issued a threat to split the 9th Circuit.
First the Ninth Circuit rules against the ban & now it hits again on sanctuary cities-both ridiculous rulings. See you in the Supreme Court!
— Donald J. Trump (@realDonaldTrump) April 26, 2017
But can he actually follow through on his threat?
In a word: Yes. It is possible for Trump to break up the 9th Circuit Court of Appeals – through Congress, that is. However, it is highly unlikely members of Congress will push forward the legislation. He isn’t the first president to threaten it, either. In 1980, President Carter signed a bill to split up the 5th Circuit Court in the South. As a result, the western half is under the 5th Circuit, while the eastern half is under the 11th.
It seems odd that Trump is pursuing the 9th Circuit when the block of his executive order came from Judge William Orrick of the United States District Court for the Northern District of California. The sanctuary ruling will not get to the 9th Circuit Court until Trump appeals the lower court’s decision, as he has threatened.
Attacks on the 9th Circuit tend to come from conservatives, who complain that the court rulings are too liberal and that the court itself is too large. They argue that breaking it up into more circuits would make cases move faster.
But Trump’s concerns are different. He is not concerned about the efficiency of the court; he is simply angry about the lower court’s ruling as well as the 9th Circuit Court’s rulings to halt two of his executive orders on immigration.
In terms of the partisan bias the GOP accuses the court of, Democratic presidents have appointed over twice as many judges as Republican presidents. Splitting the court creates the opportunity to form a separate circuit with more conservative judges, which also means more judicial appointments for President Trump. Currently, the 9th Circuit has four vacancies and with the lower court judicial filibuster nuked by Republicans in 2013, the GOP only needs a simple majority – 51 votes – to elect lower court judges nominated by Trump. This shouldn’t be difficult given that they have 52 seats, which even allowed them to nuke the Supreme Court filibuster in order to confirm Trump nominee Neil Gorsuch.
A top concern, however, is the inevitable abuse of power by the ruling party in the Senate if a circuit court is broken up. With Republicans narrowly holding the majority in Congress, they have the ability to appoint any judges they please without a single Democratic vote. Gaining political power and sway over courts – which are supposed to act as checks and balances to the legislative branch – means less independence and more partisan bias. It would signal the death of the courts’ ability to reliably enforce the Constitution and protect the rights of the American people.
Though this all sounds quite terrifying, it would be a lengthy, brutal, drawn-out process, and is therefore unlikely to happen. So for now, it seems that Trump may just be stuck with the 9th Circuit as is.