WASHINGTON — The Trump administration on Monday told the federal judge who blocked a temporary travel ban on citizens from seven majority-Muslim countries that it was keeping its legal options open pending further word from a federal appeals court.
In a response to Judge James Robart that was due Monday afternoon, the Justice Department said scheduled proceedings in his court should be delayed until the full U.S. Court of Appeals for the 9th Circuit decides whether to rehear the government’s case.
“At this time, defendants believe the appropriate course is to postpone any further proceedings in the district court,” acting Assistant Attorney General Chad Readler wrote.
With two strikes against the ban already this month — first from Robart, then from a three-judge panel of the 9th Circuit — the full appeals court is weighing whether to hear Trump’s plea to restart the travel ban while the legal challenge continues. Both the government and the states of Washington and Minnesota must provide their input by Thursday.
It is unlikely the full appeals court will vote to rehear the case, since the large majority of its judges were named by Democratic presidents, but at that point objecting judges would be able to voice dissents. The rulings against the ban came from two judges nominated by Democrats and two by Republicans.
If the appeals court decides against a rehearing, the government could appeal to the Supreme Court, continue the case before the three-judge panel, return to Robart’s district court in Seattle, or rewrite the executive order in an effort to make it easier to uphold in court. At this point, all those options remain on the table.
Trump’s ban, announced Jan. 27, temporarily barred citizens of Iraq, Iran, Libya, Somalia, Sudan and Yemen for 90 days, all refugees for 120 days, and Syrian citizens indefinitely. It led to chaos at U.S. and international airports as tens of thousands of visa holders were blocked from entering the country or detained after arriving in the U.S.
A barrage of protests and lawsuits followed, leading to federal court rulings against the ban in New York, Virginia and elsewhere. One judge in Massachusetts later ruled in Trump’s favor, but since then judges from Alexandria, Virginia, to Seattle have said it may violate the constitutional rights of visa holders, green card holders and others, and that it lacks sufficient national security justification.
The Trump administration contends that the president has authority under the Constitution and congressional statute to control immigration for national security purposes. They point to a 1952 law that allows a president to bar entry to immigrants or classes of immigrants if the president deems them to be “detrimental to the interests of the United States.”
The appeals court panel said that although the president should get “considerable deference” in the areas of immigration and national security, “it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”
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