New Proposed Legislation to Break Up the Ninth Circuit

Senators Flake and McCain Propose Legislation to Split Up the Ninth Circuit

On February 2, 2017, Senators Jeff Flake and John McCain of Arizona introduced the Judicial Improvement Act of 2017 [PDF version]. The legislation is also strong backed by the Governor of Arizona, Doug Ducey [link] [PDF version]. On February 3, 2017, Senator Flake, in conjunction with United States Representative Matt Salmon of Arizona's Fifth Congressional District, proposed bicameral legislation to the same effect [PDF version].

The Judicial Administration and Improvement Act of 2017 would break up the United States Court of Appeals for the Ninth Circuit into two. The current Ninth Circuit hears appeals the following states and territories:

Alaska;
Arizona;
California;
Hawaii;
Idaho;
Montana;
Nevada;
Oregon;
Washington;
Guam; and
Northern Mariana Islands.

The Judicial Improvement Act of 2017 would move Arizona, Alaska, Idaho, Montana, Nevada, and Washington out of the Ninth Circuit and into a newly established Twelfth Circuit. Furthermore, the legislation would provide that this new Twelfth Circuit would not be bound by the precedent of the Ninth Circuit.

Alternative Legislation Proposed by Senators Sullivan and Daines

On February 2, 2017, Senators Dan Sullivan of Alaska and Steve Daines of Montana introduced their own version of legislation to split up the Ninth Circuit. The Circuit Court of Appeals Restructuring and Modernization Act [PDF version] would also split the Ninth Circuit into two circuits. This version of the legislation would create a Twelfth Circuit out of Alaska, Arizona, Idaho, Montana, Oregon, and Washington. The key difference between this proposal and the one offered by Senators Flake and McCain is that Oregon would be included in the new Twelfth Circuit, leaving the Ninth Circuit with only two states (California and Hawaii) and two territories (Guam and the Northern Mariana Islands).

Senators Sullivan and Daines also introduced the Federal Court of Appeals Modernization Act [PDF version]. This legislation would establish a commission to study the current Federal Court of Appeals system to study ways to make the current Ninth Circuit more effective and efficient.

Understanding the Arguments For and Against

The Wall Street Journal reports that as of September 2016, the Ninth Circuit had 13,334 pending cases, more than double the next circuit.¹ Furthermore, despite having 29 judge seats, the Ninth Circuit “takes a median of around 14 months to reach a decision in a case, five and a half months slower than the national median.”² To be sure, the Journal notes that political considerations are likely at play as well. Deservedly or not, the Ninth Circuit has a reputation for being reaching liberal outcomes, and because of the sheer number of appeals it adjudicates, its decisions have a significant effect on law in the United States. It is likely no coincidence that Arizona, a largely conservative state, has been leading the charge as of late to split up the Ninth Circuit.

The perceived politics of the push to split up the Ninth Circuit has scuttled previous efforts, with Democrats generally being opposed. Furthermore, many of the judges on the Ninth Circuit itself have expressed opposition. Judge Alex Kozinski, the former Chief Judge of the Ninth Circuit, argues that the reason for the Ninth Circuit's backlog is not the amount of appeals it has jurisdiction over, but rather the result of having vacant seats open for months.³ Judge Kozinski further argues that the Flake-McCain proposal, which would pair California with Oregon, Hawaii, Guam, and the Northern Mariana Islands in a smaller Ninth Circuit, would leave the Ninth Circuit as more liberal than it is now.⁴

Potential Effect on Immigration

Any move to split up the Ninth Circuit would have a significant effect on immigration law. Due to California's large size and that it is on the U.S.-Mexico border, a significant number of immigration cases arise from California and the Ninth Circuit. Some of the other states in the current Ninth Circuit also host a significant number of immigration cases, most notably Arizona. Furthermore, interesting cases sometimes arise out of Guam and the Northern Mariana Islands, which both present unique immigration cases. On the whole, the Ninth Circuit adjudicates vastly more immigration cases than any other circuit. Were the Ninth Circuit to be split up, it would necessarily represent a seminal moment in U.S. immigration law. The effect would be especially dramatic if the hypothetical Twelfth Circuit was not bound by the existing precedent of the Ninth.

My Analysis

I wrote about Governor Ducey's efforts to move Arizona out of the Ninth Circuit last year [see blog] and Senator Flake's promise to introduce legislation to that end earlier this year [see blog]. I share many of their concerns, and for reasons that I explained in those articles, I support the effort to break up the Ninth Circuit. Due in large part to the size of California, the Ninth Circuit is drastically larger than any of other Federal circuit courts, and carries an accordingly sizable case-load. Concerns about the Ninth Circuit's size and case-load are sufficient to warrant splitting it up absent any political considerations.

Some will dismiss the proposed legislation to break up the Ninth Circuit as mere petty politics. However, it is not at all invalid for individuals in states such as Alaska, Arizona, and Montana to be frustrated with the fact that appeals arising from their states are adjudicated in what they perceive to be a California-centric Federal circuit court. Many who dismiss the concerns of the two Senators and Governor of Arizona would likely have a different view if the appeals arising from state always came before a circuit based in Texas. That there are political considerations at play in the effort to break up the Ninth Circuit does not mean that the effort is without merit.

Between the two proposals discussed in this article, I prefer the proposal of Senators Flake and McCain. The Sullivan-Daines proposal would leave the Ninth Circuit with only two states and two territories. While California by itself has the population to be a circuit of its own, it must be noted that the smallest circuits in terms of number of states have three, with the exceptions of the D.C. Circuit and the Federal Circuit. Any circuit court with California in it will be — to some extent — California-centric. However, I think that a circuit with only California, Hawaii, and two very small territories is would be far too California-centric, and would stand out as being the only circuit covering two states. The Flake-McCain proposal would leave the Ninth Circuit with three states, which is the number of states in the Second, Third, Fifth, Seventh, and Eleventh Circuits. Leaving Oregon in the Ninth Circuit would provide some amount of geographical balance as well.

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1. Randazzo, Sara, “Under New Bill, Federal Appellate Court Based in California Could Be Split Up,” wsj.com, (Feb. 2, 2017)
2. Id.
3. Id.
4. Id.