President Trump plans to rescind his executive order banning travel from seven predominantly Muslim countries and replace it with a revised order “in the near future,” according to documents filed by the Justice Department in an ongoing legal battle over the order.
Mr. Trump confirmed at a press conference Thursday that a new order is in the works and will likely be introduced early next week. Providing scant details about the new order, he said it “is being tailored to the decision that we got down from the court.”
The Justice Department on meanwhile asked the 9th U.S. Circuit Court of Appeals not to conduct an en banc review of a ruling that is currently barring enforcement of Mr. Trump’s order on travel and refugees, noting the new draft order in the works.
“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,” DOJ lawyers wrote in a brief filed in court Thursday.
The government lawyers instead asked the court to “hold its consideration of the case until a new Order is issued and respectfully requests that the panel opinion be vacated at that time.”
On Jan. 27, Mr. Trump signed the executive order to block most travel from seven predominantly Muslim nations — Syria, Iraq, Somalia, Iran, Sudan, Libya and Yemen — until stronger vetting could be implemented, indefinitely halt the resettlement of Syrian refugees in the U.S. and block other refugees for 120 days. Three days later, a Seattle-based federal judge issued a ruling that temporarily halted enforcement of the order across the country.
A panel of three judges from the 9th Circuit last week upheld the lower court’s temporary restraining order, but a larger panel from the 9th Circuit could reconsider that decision through an en banc rehearing.
Neither the Justice Department nor Washington state Attorney General Bob Ferguson, who successfully challenged Mr. Trump’s executive order, want the broader 9th Circuit review. But an unidentified judge on the 9th Circuit last week requested that the court’s 25 judges vote on whether to send the case to a panel of 11 judges from the circuit for the en banc reconsideration.
“The panel created no conflict with precedent of this Court or the Supreme Court; rather, the panel’s opinion is firmly grounded in precedent,” Washington state attorneys wrote in Thursday’s filings. “There is thus no basis for en banc review, especially given the interlocutory nature of Defendants’ motion and the cautious approach of the panel’s opinion.”
Granting such a hearing “would simply delay the merits of the preliminary injunction appeal to no substantive purpose,” Washington state attorneys wrote.
The DOJ has also asked to put off any briefings before District Judge James L. Robart, who originally issued the stay upheld by the appellate court, until after the entire 9th Circuit decides whether or not to take up the case.
On Thursday, Mr. Trump defended his order despite its clunky rollout.
“We are saving American lives every single day. The court system has not made it easy for us,” Mr. Trump said. “We’ve taken decisive action to keep radical Islamic terrorists out of our country. Though parts of our necessary and constitutional actions were blocked by judges, in my opinion [in an] incorrect and unsafe ruling, our administration is working night and day to keep you safe.”