One day after vowing to pursue a courtroom battle over his controversial travel ban, President Donald Trump on Friday said he may rewrite the executive order that threw the nation’s airports into chaos.
The president told reporters travelling with him aboard Air Force One that he was considering a new order to address objections raised in several legal challenges. Mr Trump offered no details of potential changes and also pledged to ultimately triumph in court.
“We will win that battle,” the president said. “The unfortunate part is that it takes time . . . We also have a lot of other options, including just filing a brand new order.”
The president said he planned to make an announcement about his next move “perhaps Monday or Tuesday”. One likely revision could involve exempting legal permanent residents, or “green card” holders, from the travel restrictions.
A new executive order would render moot the current courtroom fights, but would be certain to invite fresh legal challenges. One Trump administration official said the White House was “reviewing every single option in the court system, including a Supreme Court appeal” and that they were “confident we will prevail on the merits of the case”.
The US Department of Justice, which represents the government in court, has no plans to announce any decision about its legal strategy over the weekend, according to an official familiar with the matter.
On Thursday, a three-judge appeals court panel rejected the president’s bid to restore his travel ban, which had been blocked on Sunday by US District Court Judge James Robart.
A trio of judges from the US Court of Appeals for the Ninth Circuit rejected the government’s claim that the president enjoys unlimited power over immigration, noting that the Supreme Court repeatedly has dismissed similar claims. The decision came in a suit brought by the states of Washington and Minnesota objecting to the ban.
Right after the court issued its ruling, the president tweeted: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” He later complained to NBC that the three-judge panel had made a “political decision”.
On Friday, Ninth Circuit Chief Judge Sidney Thomas disclosed that one judge had asked that the circuit’s 25 active judges be polled on whether the appeals panel decision should be “reconsidered”. If a majority agrees, Judge Thomas and 10 additional judges selected at random will hear the case. The chief judge ordered the DoJ and the two states to file briefs on that question by February 16.
The president’s January 27 order bans all refugee admissions for 120 days and halts arrivals from seven Muslim nations for 90 days. Mr Trump says he wants to develop an “extreme vetting” system to protect Americans from terrorists coming from Iran, Iraq, Syria, Yemen, Somalia, Libya and Sudan.
The administration may be reluctant to take its fight to the Supreme Court, currently split 4-4 between liberals and conservatives. A full hearing on the merits of the president’s order would likely require the administration to present evidence about the link between individuals from the seven nations and terrorism.
The appeals court panel said the DoJ had simply asserted that travellers from those countries posed an unacceptable risk. DoJ attorneys presented “no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States”, said Judges William Canby, Richard Clifton and Michelle Friedland.
“A loss of the Supreme Court would be pretty devastating for them. So I’m not surprised that they are contemplating alternative responses,” said David Cole, national legal director of the American Civil Liberties Union, which opposes the order.
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