By Matt Zapotosky, Philip Rucker and Rachel Weiner
WASHINGTON – The White House is considering rewriting the executive order barring refugees and citizens of seven Muslim-majority countries from entering the country, according to officials, indicating the administration may try to restore some aspects of the now-frozen travel ban or replace it with other face-saving measures.
The deliberations come after a panel with the U.S. Court of Appeals for the 9th Circuit declined Thursday to immediately reinstate President Donald Trump’s controversial directive. Officials, speaking on the condition of anonymity to discuss internal discussions, said the White House and Justice Department are also mulling whether to ask the full 9th Circuit or the Supreme Court to intervene. Government lawyers could alternatively wage a legal battle in the lower courts to address more squarely whether Trump’s directive violates the Constitution.
Still, the White House’s options appear increasingly limited. The 9th Circuit judges indicated some of the administration’s proposed concessions – which presumably could turn into rewrites – don’t go far enough. Government lawyers also cannot undo Trump’s own campaign trail comments about wanting to stop all Muslims from entering the country and his assertion after taking office that Christians would be given priority. That is potentially compelling evidence that even a watered-down order might be intended to discriminate, said Leon Fresco, the deputy assistant attorney general for the Office of Immigration Litigation in President Barack Obama’s Justice Department.
“The problem is this is such a bad case for the government to be making these arguments,” Fresco said.
It is not clear exactly in what ways the White House might rewrite the order, and doing so would not automatically render moot the various lawsuits across the country.
If judges fear the government will revert to its original position once the litigation has stopped, “the court won’t usually dismiss those matters, because they say, ‘Look, it’s likely to come up again,’ " said Fresco.
Appearing with Japanese Prime Minister Shinzo Abe Friday, President Trump hinted at action that would happen outside the court process, though he did not indicate he would back down from the court battle.
“We’ll be doing something very rapidly having to do with additional security for our country,” Trump said. “You’ll be seeing that sometime next week. In addition, we will continue to go through the court process and ultimately I have no doubt that we’ll win that particular case.”
For now, the ruling from the three-judge panel with the 9th Circuit Court of Appeals keeps Trump’s travel ban on hold, meaning those once barred from entering the U.S. can continue to do so freely. The court ruled that the government had not provided evidence of a national security crisis sufficient to overcome the harms two states alleged the ban was causing for businesses, universities and travelers in their states.
In a separate case in federal court in Virginia, a judge on Friday pressed the government to produce any evidence that a ban on travel was necessary on national security grounds. Judge Leonie Brinkema said the presidential order “has all kinds of defects” and “clearly is overreaching” when it comes to long-term residents of the United States. She said there was “startling evidence” from national security professionals that the order “may be counterproductive to its stated goal” of keeping the nation safe.
The 9th Circuit judges also had rejected the Justice Department’s request to merely narrow a lower judge’s freeze of the ban, saying - even if that freeze was too broad - it was “not our role to try, in effect, to rewrite the Executive Order.” They broadly asserted their authority to serve as a check on the president’s power, though they noted their ruling was limited to whether the ban should be temporarily suspended. It did not address the ultimate question of whether it could pass constitutional muster.
The president has forcefully asserted all week that judges were wrong in their decisions on his order, and that immigration law gave him broad authority to restrict foreigners from entering the United States. He posted on Friday a quote from a Lawfare article, which noted the 9th Circuit judges had not cited in their opinion the section of the Immigration and Nationality Act that gives him such powers.
There seemed to be a growing view from commentators on the right, though, that the Trump administration might be better off to abandon this fight, rewrite portions the executive order, and be on more solid ground for future legal fights.
Dan McLaughlin, a contributor to the National Review, urged the administration to “moot and reboot.”
Edward Whelan, an influential voice in the conservative legal world who writes for the National Review Online, indicated on Twitter that he had doubts about the 9th Circuit’s ruling, but also concerns about whether the Supreme Court would reinstate an executive order he viewed as flawed.
He tweeted: “2 modest propositions: (1) Courts are getting it wrong on EO; and (2) this is not the right legal battle to fight. Do the EO right this time.” EO is a common acronym for “executive order.”
In the court battle before the 9th Circuit, Justice Department lawyers had offered a possible concession. The court, they said, could permit travel for those “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future,” but not, perhaps, for those without visas already.
The judges rejected that argument, arguing that such relief would not help U.S. citizens who “have an interest in specific non-citizens’ ability to travel to the United States,” nor would it allay concerns about the due process rights of people in the U.S. illegally.
Justice Department lawyers also argued that the ban no longer applied to green-card holders - citing guidance from the White House counsel issued after the ban took effect - and challenges on those grounds should thus be invalidated. On that, too, the judges disagreed.
“The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments,” the judges wrote. “Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.”
The White House could adjust the order in other ways - such as by exempting students or other particular types of people. That would be significant in that it might impact the ability of states such as Washington and Minnesota to have adequate standing to sue.
Robert Barnes and John Wagner contributed to this report.