White House Not Dropping Travel Ban Court Fight

Justice Department had indicated otherwise, though Trump was murky

Passengers from a Saudi Arabian Airlines flight from Jeddah are greeted by protesters as they arrive at Dulles International Airport in Virginia on Jan. 29. Protests erupted at airports around the country following President Trump’s since-blocked executive order restricting travel from several Islamic countries. (Photo By Bill Clark/CQ Roll Call/Pool)
Passengers from a Saudi Arabian Airlines flight from Jeddah are greeted by protesters as they arrive at Dulles International Airport in Virginia on Jan. 29. Protests erupted at airports around the country following President Trump’s since-blocked executive order restricting travel from several Islamic countries. (Photo By Bill Clark/CQ Roll Call/Pool)
Posted February 21, 2017 at 3:40pm

The Trump administration says it is keeping up its court fight to revive an executive order banning entry in the United States by people from Syria and six other Muslim-majority countries, despite Justice Department lawyers stating the opposite.

White House Press Secretary Sean Spicer said Tuesday the administration is moving ahead on dual paths: a new executive order that should be issued in a few days, and a continued legal fight over the initial order.

“We’re going to have a dual track system,” Spicer said at Tuesday’s White House briefing, adding the president is confident in the court battle “because the authority is granted to the president to do what he has do to protect the country.”

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In the meantime, a coming second executive order would stiffen vetting of individuals seeking entry from those seven countries. It is being “tailored to achieve the same goals but in accordance with what the court said,” Spicer said.

His description, however, contradicts what Justice Department lawyers told the 9th U.S. Circuit Court of Appeals in a request that it not conduct an en banc review, or full court ruling, of the initial order. A panel of 9th Circuit judges has kept the order on ice.

“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 lawyers wrote in a legal brief filed last Thursday.

Further muddying the waters was a statement by Trump during his first solo White House press conference that same day.

“Let me tell you about the travel ban. We had a very smooth rollout of the travel ban. But we had a bad court. Got a bad decision,” Trump said of the 9th Circuit’s decision.

“We had a bad decision. We’re going to keep going with that decision,” he said. “We’re going to put in a new executive order next week sometime. But we had a bad decision.”

Spicer’s description of the White House’s plan five days later suggests the president might have meant “case” when saying he intended to “keep going” with the 9th Circuit’s decision.