Trump Administration Walks Away From Legal Fight Over First Refugee Order

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Kevin Daley Supreme Court correspondent

The U.S. Department of Justice has withdrawn from the court battle over President Donald Trump’s first executive order on refugees, essentially ending the litigation surrounding the Jan. 27 directive.

Government lawyers filed a short brief in the 9th U.S. Circuit Court of Appeals Tuesday, withdrawing their appeal of an earlier decision upholding a temporary ban on the order’s enforcement. Washington and Minnesota, the two states that challenged the legality of the order, jointly agreed to dismiss the case.

“The Trump Administration’s decision to withdraw their appeal — and pay our costs — confirms what I said yesterday: The President’s original travel ban was unconstitutional,” Washington state attorney general Bob Ferguson said in a statement. “Contrary to President Trump’s indefensible criticisms of the judiciary, his concession today admits that Judge Robart got it right when he enjoined the original Executive Order.”

Ferguson also said his office is carefully reviewing the president’s revised order, and will consider what legal recourse is necessary.

The Justice Department’s decision was not unexpected. It would not make sense for government lawyers to commit time and resources to the defense of an executive order that will never be implemented. Nonetheless, the administration’s repeated assertions that the order was a lawful exercise of presidential authority, and Trump’s own promises to fight on through future proceedings, makes their withdrawal from the case something of an embarrassment.

The end of the appeal ensures that the case will remain a valid precedent in the 9th Circuit. The decision could be referred to again in the coming months, should new challenges to the revised order arise in that court.

The president’s revised order on refugees has been slow to attract the flurry of litigation that greeted the first executive order. Democratic attorneys general, like Doug Chin of Hawaii, and left-wing advocacy groups like the ACLU, say the new order is substantively similar to the old order, and have promised to bring challenges to the directive.

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