WASHINGTON – President Donald Trump said Thursday that he will issue a new executive order on immigration by next week, and Justice Department lawyers asked a federal appeals court to hold off on taking action in the legal battle over his initial travel ban until that order is in place.
In a news conference at the White House, Trump said the new order would “comprehensively protect our country,” and he hinted that it might contain new vetting measures for travelers. Trump’s first order temporarily barred refugees and citizens of seven Muslim-majority countries from entering the U.S., ostensibly so officials could review and tighten screening procedures.
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“Extreme vetting will be put in place, and it already is in place in many places,” Trump said. He said the administration “had to go quicker than we thought” because a federal appeals court refused to lift the suspension on his travel ban.
A new executive order would not necessarily end the litigation over Trump’s travel ban – particularly if it were not a dramatic departure from the original directive.
Justice Department lawyers, though, seemed to think it would have a major impact. In a court filing Thursday, they urged a federal appeals court to delay reconsidering a three-judge panel’s decision to freeze the travel ban because a new order was coming.
“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 lawyers wrote. “In so doing, the President will clear the way for immediately protecting the country rather than pursuing further, potentially time-consuming litigation.”
Trump could make clear that his order no longer applies to green-card holders – who probably have the strongest case to sue in U.S. courts – or he could craft an order that applies only to people who have not yet applied for visas. But a three-judge panel with the U.S. Court of Appeals for the 9th Circuit said even those modifications would not necessarily convince them to lift a suspension on the ban, because such changes would not help U.S. citizens who “have an interest in specific noncitizens’ ability to travel to the United States.”
Lee Gelernt, the deputy director of the ACLU’s national Immigrants’ Rights Project who is involved in another legal challenge to Trump’s order in federal court in New York, said it was difficult to assess a new order without seeing it, “but I think any type of ban is going to be legally problematic, and I also don’t think that the taint of religious discrimination is going to go away.”
Trump’s executive order, signed Jan. 27, barred refugees from entering the country for 120 days; citizens of Iraq, Iran, Somalia, Sudan, Yemen and Libya for 90 days; and citizens of Syria indefinitely. A federal judge in Seattle first ordered Trump’s ban be suspended Feb. 3, and the three-judge panel with the 9th Circuit last week unanimously rejected the administration’s request to undo that freeze. That left Justice Department lawyers with two options in the short-run: rush immediately to the Supreme Court, or ask the full 9th Circuit to take up the matter in what is known as a rehearing “en banc.”
They had yet to make a choice when a judge on the 9th Circuit asked the judges to take a vote on their own, and the circuit’s chief judge asked the parties to file by Thursday their positions on the matter.
The Justice Department, representing the Trump administration, argued in their filing that the three-judge panel was wrong, but – given that a new executive order was coming anyway – the 9th Circuit should hold off on taking up the matter en banc.
The states of Washington and Minnesota, which are suing over the ban, also argued against en banc consideration, but they asserted that the three-judge panel got it right.
At issue so far has not been whether Trump’s travel ban is ultimately legal – though that has been part of the consideration. The judges have only been asked to consider whether national security concerns necessitate an immediate restoration of the travel ban, when weighed against the economic and other harms Washington and Minnesota say it is imposing on their states.
The president has broad authority to set immigration policy, but federal judges across the country have ruled against Trump’s particular travel ban. This week, a federal judge in Virginia handed down perhaps the most stinging rebuke of the executive order, declaring that there was evidence that it was motivated not by national security concerns but instead by “religious prejudice” toward Muslims.
(c) 2017, The Washington Post ยท Matt Zapotosky
