President Trump’s attempt to strictly limit immigration of people from Mideast nations, stalled for now by court orders, moves into a new and important phase in the coming week. The White House may produce an entirely new order, even as two federal courts will be pondering their next legal steps.
The President, in comments Friday to reporters traveling with him on Air Force One, indicated that a rewritten version of his executive order could come as early as Monday. But he also said his administration would continue to make a legal defense of his policy in the federal courts.
If a new executive order is issued, that could short-circuit the current legal proceedings because those are aimed at the Trump order in the form it was issued on January 27. New court challenges, however. could be filed against a new version.
Both of the federal courts that have ruled, at least temporarily, against the policy’s enforcement will be considering new approaches next week to the constitutional and statutory challenges to the president’s authority.
U.S. District Judge James L. Robart of Seattle, who was first to temporarily block the executive order, will be holding a hearing on Monday afternoon on an unusual maneuver by the two states that successfully challenged the presidential action.
Instead of going ahead with an earlier plan to ask Judge Robart to impose a new and more lasting order against the White House policy, lawyers for Washington State and Minnesota moved on Friday to have the judge declare that his February 3 temporary order has already achieved that added legal force because of the way a federal appeals court treated it. There is thus no need, the lawyers said in a letter to the court, to move ahead with further legal filings in Judge Robart’s court. In essence, they were suggesting that the judge simply declare a new victory for the challengers.
This is a bit complex. Robart’s order was issued as a temporary restraining order that was designed to maintain the statue quo on Mideast immigrants’ entry to the U.S. until the states could file a formal request for an injunction — a stronger ban on enforcement.
When the U.S. Court of Appeals for the Ninth Circuit refused on Friday to disturb Judge Robart’s action, it treated his temporary restraining order as if it actually were an injunction. (Technically, that interpretation was necessary in order to give the Circuit Court the authority to consider the Trump Administration’s appeal seeking permission to put the presidential order back into effect. A temporary restraining order ordinarily cannot be appealed.)
That switch by the Circuit Court, the two states’ lawyers told Judge Robart, gave them what they would otherwise have sought in a stronger order.
In response, the Seattle judge ordered the two states and the Trump Administration to file new written briefs by noon Monday (Pacific time; 3 p.m. on the East Coast) to offer their views on what to do next. The judge will hold a hearing three hours later.
If the judge agrees that an injunction against enforcement already exists, that could speed up the judicial side of the immigration controversy.
There will be another important development in that controversy in the coming week. This, too, is procedural in nature, but has important implications for the ongoing legal proceedings.
After the three-judge panel of the Ninth Circuit Court ruled temporarily against the Trump order, another Circuit Court judge not on that panel (but not publicly identified) called for a vote on a request to reconsider that ruling, this time by an eleven-judge, en hanc court.
In response to that request, Chief Judge Sidney Thomas ordered both sides to file briefs with their views on whether reconsideration should be granted. Those briefs are due on Thursday morning. It would take the votes of a majority of the active judges on the Ninth Circuit Court to grant rehearing.
The consideration of the en banc question will delay the option the Trump Administration has to take the case on to the Supreme Court, assuming that it had been pondering such a move. That is unclear.