The Trump administration is not currently planning to appeal the decision blocking its travel ban to the Supreme Court, a source familiar with the matter tells CNN.
The decision to not go to the Supreme Court comes as the White House is examining several options to save President Donald Trump’s controversial executive order on immigration.
“We will win that battle. The unfortunate part is that it takes time statutorily, but we will win that battle. We also have a lot of other options, including just filing a brand new order,” Trump told reporters onboard Air Force One Friday evening.
Asked if his plan might be to issue a new executive order, POTUS said: “It very well could be. We need speed for reasons of security, so it very well could be.”
In the aftermath of a federal appellate court’s decisive blow to Trump’s move to ban citizens of seven majority-Muslim countries from entering the United States, the White House is working on “possible tweaks” to the executive order, according to a source in close contact with the White House on national security issues.
Should it write a new order, it would be more narrowly tailored than the one issued two weeks ago, the source said, such as explicitly stating that it does not apply to legal permanent residents.
Questions on next steps have swirled since Thursday evening when the 9th Circuit Court of Appeals refused to lift of temporary restraining order on Trump’s executive order barring foreign nationals from Iran, Sudan, Libya, Somalia, Syria, Iraq and Yemen from entering the country for 90 days, all refugees for 120 days, and all refugees from Syria indefinitely.
“We are going to do whatever is necessary to keep our country safe,” Trump said earlier Friday during a news conference with Japanese Prime Minister Shinzo Abe. “We’ll be doing something very rapidly having to do with additional security for our country. You’ll be seeing that sometime next week.”
The source cautions that the administration believes a new order risks making the current lawsuit “moot,” which it may not want to do because it believes it can ultimately win on the merits.
Next steps in court
The Justice Department has a variety of options for how to proceed next in court, and Trump insists his administration will ultimately be successful.
“In addition we will continue to go through the court process, and ultimately I have no doubt we’ll win that particular case,” Trump said Friday.
The Justice Department might still try to persuade a larger panel of judges on the 9th Circuit to grant its emergency motion to “stay” (i.e., stop) US District Court Judge James Robart’s temporary restraining order suspending key provisions of the travel ban.
DOJ could also dismiss its appeal of the temporary restraining order altogether and continue litigating the merits of the case in front of Robart in an attempt to bolster its case. Additionally, some legal experts believe it may be advantageous for the administration to just write a new executive order to avoid the possibility of the President being subpoenaed over conversations regarding a “Muslim ban.”
An official tells CNN that administration officials were not happy with the DOJ lawyer’s performance during the oral arguments before the three-judge panel of the 9th Circuit and thought he was not as prepared as he should have been for the arguments against Washington and Minnesota, the states that challenged Trump’s executive order.
The source said it’s clear the judges asked more about merits than the government lawyer anticipated, and he stumbled on simple arguments concerning the states’ standing, or ability to challenge, the order.
On Friday, Robart said he would like to hear from the government on next steps in light of the Ninth Circuit’s ruling.
Robart has ordered the Justice Department and the states to submit a joint status report by 3 a.m. ET Monday that sets forth a plan moving forward while the appeal is pending the Ninth Circuit. The court will then hold a conference call with the parties at 2 p.m. ET Monday.
9th Circuit may hear case en banc
On Friday, one judge on the 9th Circuit Court of Appeals made a request that a vote be taken by the full court to consider whether to rehear the decision made by the three-judge panel on Thursday.
The court requested briefs on the issue by February 16. The vote is likely to occur after the briefs are filed.
This might put the administration in an awkward position. It simultaneously has to file briefs and decide how it wants to handle the existing executive order.
It is unclear if a majority of the 25 active judges on the bench will agree to hear the case.
Judge Sidney R. Thomas, a Clinton appointee, made the request.
The Justice Department said in a statement it is “considering its options” in response to Thomas’ request.