The Trump administration declared Thursday that it planned to rescind its controversial travel ban and replace it with a new one that officials believe can withstand court challenges.
“Rather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns,” the Justice Department said in briefs filed Thursday in the 9th U.S. Circuit Court of Appeals, which earlier had refused to overturn a lower-court order that halted the travel ban.
The filing came as the 9th Circuit was considering whether to review the earlier decision by a three-judge panel and order a larger, “en banc” review by 11 judges.
The court ordered briefs filed by Thursday, and both sides submitted arguments saying they did not want a new review.
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The states of Washington and Minnesota, which have won two court orders that temporarily halted the president’s travel ban, argued that no new court review is needed and that ordering one would “simply delay the merits of the preliminary injunction appeal to no substantive purpose.”
But the federal government’s brief seeks to render the issue moot, declaring that a new order will sidestep more legal delays.
“In so doing, the President will clear the way for immediately protecting the country rather than pursuing further, potentially time-consuming litigation,” administration lawyers wrote.
In a news conference Thursday at the White House, President Donald Trump criticized the 9th Circuit judges, saying “the circuit is in chaos.”
“We’re issuing a new executive action next week that will comprehensively protect our country,” Trump said. “So we’ll be going along the one path and hopefully winning that, at the same time we will be issuing a new and very comprehensive order to protect our people.”
How the courts and the states that sued over the ban will respond is not clear, but Washington state Attorney General Bob Ferguson said Thursday that he believed the federal government was “conceding defeat.”
“Let’s be clear: Today’s court filing by the federal government recognizes the obvious – the president’s current executive order violates the Constitution,” Ferguson said. “President Trump could have sought review of this flawed order in the Supreme Court but declined to face yet another defeat.”
There still is a question on whether the court case that is in front of U.S. District Judge James Robart in Seattle is now moot.
Professor Erwin Chemerinsky, dean of the UC Irvine School of Law, said it all depends on whether the older order has truly been rescinded and how the new one is worded. There is still a chance, he said, that Robart can keep the case in his court, hold hearings and issue a preliminary injunction.
“Sure,” Chemerinsky said, “because if the new executive order is much like the existing one, they might just keep the same case going and modify it to deal with the new executive order.”
To make the new one legal, Chemerinsky said, the administration must “have it not apply to those who are lawfully in the United States. They have to make sure there is no religious discrimination, so I don’t think they can target mostly Muslim countries, and they have to ensure that there is due process provided.”
The federal government contends in its brief that the three-judge panel’s decision was wrong and that, in normal circumstances, a review by a larger panel of 9th Circuit judges would be warranted.
“In light of the forthcoming promulgation of a new superseding Executive Order, however, such a review is not called for at this time,” the Justice Department argued. The “proper course,” the administration lawyers wrote, “would be simply to vacate the panel’s opinion when the new Order is promulgated.”
The administration “will promptly file with the Court the new Order as soon as it has been issued,” the brief said.
The president signed the order Jan. 27 to bar entry of visa holders from seven Muslim-majority countries with terrorism links – Yemen, Sudan, Libya, Iran, Iraq, Syria and Somalia – for 90 days, pending additional security checks. The order also prevented refugees from entering the country for 120 days.
The immediate impact was chaos at airports nationwide as the order was implemented. Subsequent legal challenges led to the federal judge in Seattle issuing a temporary restraining order halting the ban on Feb. 3.
The Trump administration appealed that order to a three-judge panel of the 9th Circuit, which unanimously ruled Feb. 9 that the Seattle judge’s order should be upheld.
The next day, however, a 9th Circuit judge requested a vote by the full circuit on whether a new panel of 11 judges should review the decision and issue its own ruling. The briefs filed Thursday were to be used in deciding whether to move to a larger en banc panel.
The case had generated filings by interested parties ranging from civil liberties groups and legal scholars supporting the efforts of Washington and Minnesota to Texas Attorney General Ken Paxton, who argued in a brief filed Wednesday that the judges are usurping Trump’s authority and improperly granting rights to foreigners that should be limited to American citizens.
“Essentially, plaintiffs argue that the United States Constitution grants nonresident aliens located abroad due-process, equal-protection, and Establishment-Clause rights regarding admission into the United States,” Paxton wrote, adding that he is “aware of no case extending those rights anywhere close to the extent that plaintiffs assert.”
Paxton also rejected arguments that Trump’s order essentially is aimed at banning Muslims from entering the United States.
The order, he wrote, “is emphatically not a ‘Muslim ban.’ ”
“Indeed, numerous Muslim-majority countries in the world are not covered by the seven-country list used in the Executive Order,” the brief notes. “And the Pew Research Center estimates that the Executive Order ‘would affect only about 12 percent of the world’s Muslims.’ ”