With President Trump and his aides now rewriting the controversial executive order to strictly limit immigration of foreign nationals from the Mideast, the administration’s lawyers chose on Thursday not to seek a federal court’s permission to enforce the first version, currently on hold. It is far from clear, however, that these new developments will end the constitutional controversy in the courts.
The President confirmed at a press conference Thursday afternoon that a new order was being drafted and indicated that it could be issued sometime next week. In a legal filing that was submitted to the U.S. Court of Appeals for the Ninth Circuit in California at about the same time that Trump was meeting with reporters at the White House, Justice Department lawyers argued that the substitute would cure the legal problems that the appeals court had cited last week when it rejected a request to let that version go into effect.
The Circuit Court, those lawyers argued, was wrong on all of its legal points, but the administration still will go ahead with a “substantially revised” executive order.
For the time being, the new filing said, the administration was not asking the Circuit Court to reconsider the bar to enforcement. By opting not to continue the legal dispute in its present form, the document also sent the message that the administration will not be moving on to the Supreme Court.
In a separate legal filing Thursday afternoon, the two states that had successfully blocked the first version of the order – Washington and Minnesota – contended that there was no basis for reconsidering the controversy. They said the case should proceed further before the federal trial court in Seattle who initially ruled that the restrictions were legally flawed.
The Ninth Circuit Court indicated that it will not be taking any further action until Friday night at the earliest. As of now, the next step appears to be a vote among the Circuit Court’s active judges on whether to reconsider the dispute by the full, 11-member Circuit Court. An unidentified judge of that court had called for such a vote on whether the full court should rule on the enforceability of immigration restrictions.
UPDATE: Later on Thursday, the Circuit Court decided to take no further action on the case until it is told that a new presidential order has been issued. It gave no hint of what it would do at that point.
After a new version emerges from the White House, it is possible that this could lead the federal courts to find that the dispute in its present form had lost all of its significance – technically, that the controversy had become “moot” – and should be dismissed.
But the two challenging states almost certainly would try to keep their case going, claiming that the revised version had not actually cured all of the constitutional and statutory defects that they had claimed about the initial version issued on January 27. Specifically, they very likely would argue, for example, that President Trump had intended to adopt a policy that discriminated against foreign nationals on the basis of their Muslim religious faith. They claimed that violated the religious clauses of the First Amendment.
The two states could amend their existing lawsuit, or file a completely new one to press on with their challenge. Other challenges to a revised version are probable in other federal courts.
Thus, as a legal matter, much remains uncertain about the President’s policy even as his aides work on a new executive order.
(This post also appears today on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)