Senator Jeff Flake Plans to Propose Legislation to Break Up the Ninth Circuit

Written by Alexander J. Segal on

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On February 1, 2016, I posted a blog addressing concerns presented by Doug Ducey, the Governor of Arizona, about his state being in the appellate jurisdiction of the United States Court of Appeals for the Ninth Circuit [see blog].

The Ninth Circuit has jurisdiction over appeals arising from Arizona, California, Oregon, Washington, Hawaii, Idaho, Montana, Nevada, Alaska, Guam, and the Northern Mariana Islands. Because of its significant scope, the Ninth Circuit has the largest caseload of any of the federal circuit courts by a significant margin. The Ninth Circuit also has the largest immigration caseload, owed both to its size and to the fact that it encompasses California and Arizona.

Nearly one year after I posted my blog on Governor Ducey's proposal, Lydia Wheeler of The Hill reports that Republican Senator Jeff Flake of Arizona is planning to introduce legislation to split up the Ninth Circuit.1 The article notes that Republicans have proposed similar measures dating “back to the 1980s,” but that such measures have hitherto been unsuccessful. The Republicans quoted in the article — which include Senate Majority Whip John Cornyn of Texas and House Majority Leader Kevin McCarthy of California — are supportive of the measure. Interestingly, the one Democrat quoted in the article, Senator Richard Blumenthal of Connecticut, seems open to considering the proposal on the merits:

“The problem has always been that [the Ninth Circuit] has a very large and somewhat unwieldly geographic area and caseload, so the question is whether there's an effective way to deal with those appeals … I'd have to see those details.”

In my previous blog post on the subject, I expressed support for breaking up the Ninth Circuit, noting that:

“If the Ninth Circuit consisted only of California, it would be responsible for more people than any of the other circuits. If you turned the rest of the Ninth Circuit … into a circuit, it would cover about as many people as both the Second and Third Circuits.”

For that reason and a variety of other reasons that I detailed in my 2016 post on the subject, I continue to support breaking up the Ninth Circuit into two smaller circuits. It will be interesting to see the exact details of Senator Flake's proposal, and whether it manages to gain traction in Congress. Any change to the composition of the Ninth Circuit would be an extremely important development in immigration law and for federal appellate law in general.

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  1. Wheeler, Lydia, “GOP eyes new push to break up California court,” thehill.com, (Jan. 22, 2017)