State of Washington v. Donald J. Trump

BEA, Circuit Judge,

with whom KOZINSKI, CALLAHAN, and IKUTA, Circuit Judges, join, dissenting from the denial of rehearing en banc:

I join Judge Bybee’s excellent dissent from the denial of rehearing en banc. I write separately to emphasize a serious error in the panel’s conclusion that the due process claims advanced by Washington and Minnesota (collectively, “the States”) were likely to succeed on the merits. States may not sue the federal government to assert due process rights for themselves, nor for their residents—much less non-resident aliens—under the Fifth Amendment, because the States…