The Trump administration will issue a new order on the admission of refugees from countries with high instances of terror, after the original order’s shoddy drafting and implementation solicited a bevy of court challenges.
The 9th U.S. Circuit Court of Appeals upheld a lower court ruling temporarily suspending the order’s implementation last week. In a brief filed Thursday before the 9th Circuit, lawyers for the U.S. Department of Justice said the president will issue a revised executive order, as opposed to pursuing further appeals.
“Rather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns,” the filing reads. “In so doing, the President will clear the way for immediately protecting the country rather than pursuing further, potentially time-consuming litigation.”
The Justice Department asked the court to halt its consideration of the current case until Trump issues a new order, at which point they hope the 9th Circuit will overturn the decision upholding the order’s temporary suspension. They did not indicate when a new order is expected, but promised to furnish it for the court as soon as it is promulgated.
The 9th Circuit was considering invoking a rarely used procedure called en banc review, in which a panel of 11 judges would review last week’s decision. En banc review is generally reserved for cases of the highest importance to the public, or for rulings which may conflict with an existing precedent.
It is unclear what the legal status of provisions in the new executive order will be if they are substantially similar to provisions stayed by the courts in the old executive order.
During a press conference on Thursday, the president said the new order will attempt to address various concerns identified in federal courts around the country.
“The new order is going to be very much tailored to what I consider to be a very bad decision,” he said. “We can tailor the order to that decision and get just about everything, in some ways more.”
The 9th Circuit found that unadmitted, nonresident aliens may have a limited due process interest in seeking admission to the U.S. U.S. District Judge Leonie Brinkema of the Eastern District of Virginia ruled Monday night that the order may violate the Constitution’s ban on the establishment of religion. The order, critics charge, evidences discriminatory intent toward Muslims, and unlawfully prioritizes the entry of religious minorities from the seven countries targeted by the immigration freeze.
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