Future Muddied in Legal Fight Over Trump Travel Ban

White House mulls scrapping executive order and starting anew

Protesters gather in front of the Supreme Court on Jan. 30 to voice opposition to President Donald Trump's executive order on immigration. (Tom Williams/CQ Roll Call)
Protesters gather in front of the Supreme Court on Jan. 30 to voice opposition to President Donald Trump's executive order on immigration. (Tom Williams/CQ Roll Call)
Posted February 10, 2017 at 8:48pm

BY JOHN T. BENNETT AND TODD RUGER

CQ ROLL CALL

The future of the legal fight over President Donald Trump’s travel ban got muddied Friday, as the White House considered whether to scrap the controversial executive order and start anew.

The Washington Post, NBC News and other media outlets, citing unnamed White House officials, reported that the Trump administration would not seek a Supreme Court review of a federal appeals court decision on Thursday that stopped implementation of the ban nationwide.

Another White House official said the administration was still considering a Supreme Court appeal of the decision by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit.

“We are reviewing all of our options in the court system and confident we will prevail on the merits of the case,” a White House official said in a statement responding to the media reports. “Additionally, we are actively pursuing other executive orders that will keep our country safe from terrorism.”

And at about the same time, the 9th Circuit announced that it would vote to see if a broader panel of judges from that circuit — called en banc — should reconsider the panel’s unanimous decision.

The appeals court directed the Justice Department and the states challenging the executive order, Washington and Minnesota, to file simultaneous briefs by Feb. 16 on whether rehearing en banc is appropriate.

“The Justice Department is considering its options. We have no further comment,” a DOJ spokeswoman said.

The action underscores the complicated and procedurally messy posture of the legal challenge to one of Trump’s first major policy actions, the immigration order that temporarily bans all refugees as well as foreign travelers from seven majority-Muslim countries.

Trump, speaking to reporters aboard Air Force One, both pledged to win the federal court battle over his travel order and floated the notion that he soon will simply sign a brand new executive directive.

“We will win that battle. The unfortunate part is that it takes time statutorily, but we will win that battle. We also have a lot of other options, including just filing a brand new order,” Trump said, according to a White House pool report.

“It very well could be” a new order, he said. “We need speed for reasons of security, so it very well could be.”