A federal appeals court, apparently relying more on what White House officials have said than on what Justice Department lawyers had conveyed, refused on Monday those lawyers’ request for an indefinite delay of that court’s review of President Trump’s January 27 order strictly limiting immigration of people from Mideast nations.
If, as expected, a new presidential order comes out this week, an almost certain challenge to it could mean a two-front courthouse battle with the government having to defend itself in both.
Earlier this month, lawyers for the Justice Department in the new administration had told the U.S. Court of Appeals for the Ninth Circuit that the government was preparing a new presidential order on immigration restrictions, and would then “rescind” the original version issued in late January.
The original version had been blocked by the Ninth Circuit Court in a temporary ruling that sent administration officials back to the task of drafting what was expected to be a substitute.
However, President Trump and the White House press secretary, Sean Spicer, have since said that the government would continue in court to defend the legality of the first version. Spicer has several times said that the government would be going forward on a “dual track” – issuing a new order while persisting in the defense of the first one. That directly contradicted what the Ninth Circuit Court had been told by government lawyers.
Late last week, those lawyers asked the Circuit Court to grant an indefinite delay in proceedings before that court involving the first order. They did so because, at least in part, they were due to file a brief in defense of that version this week. Noting that a “new order” was being prepared, that filing argued that there was thus no need to file further written arguments in the pending case. That document made no mention of a “dual track” approach.
In reply to that request, lawyers for the two states that successfully challenged the January order – Washington and Minnesota – notified the Circuit Court of the remarks by the president and the White House press secretary of the “dual track” strategy. This morning, the Circuit Court rejected the request for indefinite delay, although it did give the Justice Department lawyers another week – until March 10 – to file the required brief.
It now appears almost a certainty that a new version of the Mideast immigration order will face as strong a court challenge as the original did. That is due partly to the perception of the challengers that any new version will be just as vulnerable legally, because the whole idea originated in Donald Trump’s campaign commitment to a “Muslim ban,” barring immigrants based on their religion.
The challengers also have been emboldened by public remarks by a White House strategist – Steven Miller – who has been centrally involved in the executive order drafting process. Miller has said that a new order would make only fairly minor, technical changes in the original. That has led the challenging states’ lawyers to conclude that the arguments they mounted the first time will work again.
Further apparent support for the challengers is a leaked report last weekend from the Department of Homeland Security questioning whether there is evidence to support a suspicion of terrorists potentially coming to the U.S. from the Muslim-majority nations targeted by the presidential order.
Thus, developments over the next several days could lead to an intensifying legal battle – on two fronts, not one – that could bring continued uncertainty about who is being banned from the country, and who is not.
(This post also appears at Constitution Daily, the blog of the National Constitution Center in Philadelphia.)