Ninth Circuit Hears DOJ's Emergency Appeal in U.S. v. California in a Rare Sunday Argument

A Ninth Circuit panel heard the Justice Department’s emergency appeal in United States v. California (No. 26-7070) on Sunday, the day after the court set the argument on October 24, Law Dork reported. DOJ asks for an order that California officials “set aside vote-by-mail ballots from persons identified by the Federal Government likely to be noncitizens”. Law Dork’s account of the argument says “there did not appear to any path to the panel siding with the Justice Department at this time” and “It appeared most likely that the appeals court will dismiss the appeal altogether,” for lack of jurisdiction over an appeal from Judge David Carter’s failure to rule. Of DOJ’s comparison to the Alien Enemies Act case, one judge said from the bench that it was “far, far, far different than A.A.R.P. … I don’t see how we have jurisdiction.” That is a reporter’s account of an argument, not a ruling.

The jurisdiction question was already in the briefs: the court ordered the United States to answer the Los Angeles County registrar’s “emergency motion under Circuit Rule 27-3 to dismiss appeal for lack of appellate jurisdiction” by October 25, 2026 at 9 a.m. PDT. The appeal rests on DOJ’s theory that the district court’s silence was a “constructive denial” of its TRO request (2026-10-22–doj-files-notice-of-appeal-9th-circuit-us-v-california-says-no-ruling-on-tro-application-is-constructive-denial). Carter’s own TRO argument stays set for 1:00 p.m. PT Tuesday. For the federal list behind the request, see 2026-10-19–doj-seeks-tro-us-v-california-sworn-dhs-declarations-describe-how-20000-voter-list-was-built.