Trump administration may have to go to court – even if it doesn’t want to right now

The 9th U.S. Circuit Court of Appeals on Monday denied a motion by government lawyers to hold off on reconsidering its rejection of the Trump administration’s Jan. 27 executive order that suspended travel from seven majority-Muslim countries.

U.S. Department of Justice lawyers filed the motion Friday on grounds that the administration is about to issue a new executive order. But the same three-judge panel that this month refused to stay a lower court’s temporary restraining order on the travel ban also declined to stop proceedings on the appeal pending in the 9th Circuit.

Attorneys for the state of Washington fought the administration’s motion for abeyance. They argued that President Donald Trump and his press secretary, Sean Spicer, have said the administration intends to proceed on a dual-track mode to both fight the 9th District’s ruling and to submit a new executive order. In that light, the plaintiff’s lawyers said the 9th District should stick with a briefing schedule it laid out the same day that the three-judge panel declined to block U.S. District Court Judge James L. Robart’s ruling that put Trump’s executive order temporarily on ice.

“Throughout these proceedings, there appears to have been a lack of communication between the Department of Justice and the White House,” Washington state Attorney General Robert W. Ferguson argued in court papers they filed last Friday. Minnesota Attorney General Lori Swanson, whose state is a co-plaintiff in the case, joined Ferguson in opposing the administration’s motion.

Department of Justice lawyers said in court papers filed on Feb. 16 that the administration did not intend to seek a fuller, en banc review of the three-judge panel’s Feb. 9 ruling. The same day, President Trump said at a press conference that he would in fact be appealing the 9th Circuit’s action. He also said the administration would be issuing a new executive order on immigration.

Plaintiff’s lawyers said in their papers last week that Trump’s statement at the press conference “directly contradicted the representations made to this court” by the DOJ.

As of Monday, the administration had neither filed an appeal nor issued a new executive order. Some news agencies reported on Monday that Trump will issue the new executive order on Wednesday.

In any event, the ruling Monday by appellate judges Michelle T. Friedland, William C. Canby and Richard R. Clifton established a new briefing schedule for reconsideration of the appeal. The administration is now due to submit its papers by March 10, with the states responding by March 31.

Trump’s Jan. 27 executive order suspended visas for 90 days for people from Syria, Iran, Iraq, Libya, Sudan, Somalia and Yemen. It also held up for 120 days the resettlement of refugees into the United States from all over the world.

In the Seattle case, Washington and Minnesota charged that the action unconstitutionally discriminated against Muslims and denied due-process rights to immigrants who had already been in the United States. Judge Robart on Feb. 3 issued a temporary restraining order that blocked enforcement of the order until he holds a hearing on a preliminary injunction to determine its constitutionality.

This story was originally published February 27, 2017 at 2:47 PM with the headline "Trump administration may have to go to court – even if it doesn’t want to right now."