Earlier this morning we noted rising speculation among various mainstream media outlets that the Trump White House was planning to make modifications to its immigration ban executive order in response to its recent unanimous defeat in the 9th Circuit Court of Appeals. While the White House had remained mum of the rumors, President Trump, in a joint press conference with Japanese Prime Minister Shinzo Abe, just hinted that a new executive order could be coming next week.
“We’ll be doing something very rapidly having to do with additional security for our country; you’ll be seeing that sometime next week,” Trump said with Abe by his side. He offered no specifics.
As Bloomberg notes, the president’s tone was somewhat less defiant than in the immediate aftermath of Thursday’s 26-page ruling from a three-judge panel, when he tweeted that the decision was “disgraceful” and vowed to press on with legal efforts to reinstate the travel ban.
“We are going to keep our country safe,” he said on Friday. “We are going to do whatever’s necessary to keep our country safe.” He added he would continue to fight for the travel ban in courts, and that “ultimately, I have no doubt we will win that particular case.”
The Trump administration has argued that states had no right to sue to block the immigration order, and said courts have no authority to review an executive branch decision on immigration policy. But as reported last night, the panel of three judges from the United States Court of Appeals for the Ninth Circuit, in San Francisco rejected those arguments, saying that the “federal judiciary retains the authority to adjudicate constitutional challenges to executive action.” Moreover, the panel found, the administration had shown “no evidence” that individuals from those seven nations had committed terrorist acts.
While Trump could appeal the decision to the U.S. Supreme Court, reversing the ruling would require a five-vote majority among the eight current members. Instead, what now appears likely, is that Trump may issue a new executive order that explicitly omits green-card holders from the travel ban in an effort to head off legal challenges.
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Here is what we wrote earlier today:
After losing last night in a not so shocking 3-0 decision, courtesy of the 9th Circuit Court of Appeals, the White House is rumored to be redrafting its travel ban executive order this morning with more specific language to address concerns raised by the court. The report of a redraft comes from Joe Scarborough of MSNBC, who cited unnamed sources, so, as always, the information must be taken with a grain of salt. Here is what Scarborough told viewers earlier this morning:
“I’ve heard from several sources that the White House is right now working on redrafting an executive order but want to make sure that it is tight enough to pass.”
Meanwhile, Trump once again blasted the 9th Circuit’s “disgraceful decision” over Twitter early this morning:
LAWFARE: "Remarkably, in the entire opinion, the panel did not bother even to cite this (the) statute." A disgraceful decision!
— Donald J. Trump (@realDonaldTrump) February 10, 2017
The President’s tweet references the following excerpt from a blog post on Lawfare which criticizes the 9th Circuit’s 29-page opinion that didn’t even bother to cite the statute granting the President fairly broad and unilateral authority to restrict immigration at his own discretion.
This case is about two big questions, only one of which the panel’s per curiam today even mentions. The first question is how broad the president’s authority is to limit admissions from the relevant seven countries—and to what extent that authority is limited by constitutional law—under a statute that gives him the sweeping power to do this:(f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
Remarkably, in the entire opinion, the panel did not bother even to cite this statute, which forms the principal statutory basis for the executive order (see Sections 3(c), 5(c), and 5(d) of the order). That’s a pretty big omission over 29 pages, including several pages devoted to determining the government’s likelihood of success on the merits of the case.
Scarborough’s reporting this morning came after he released a tweet storm last night calling for a redraft of the controversial executive order while also blasting the 9th Circuit’s decision.
This immigration EO was a disaster from the start. The president should start over, have agencies draft it more narrowly, and sign it.
— Joe Scarborough (@JoeNBC) February 9, 2017
Yep. This is Miller and Bannon's handy work. The White House should redraft the order relying the interagency process this time. https://t.co/IGHquzdQcK
— Joe Scarborough (@JoeNBC) February 10, 2017
Regardless of what you think of Trump, Bannon, or this order, the Ninth's decision is constitutionally weak. Trump needs to draft a new EO.
— Joe Scarborough (@JoeNBC) February 10, 2017
I hate the White House EO. But this court order is ridiculous.
— Joe Scarborough (@JoeNBC) February 10, 2017
I've read the Ninth's decision. They're lucky they won't have to read Justice Scalia's reversal of their opinion. It would be brutal.
— Joe Scarborough (@JoeNBC) February 10, 2017
Of course, Trump seemed to be ready for an immediate fight last night tweeting in all caps: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
— Donald J. Trump (@realDonaldTrump) February 9, 2017
For those interested, we wrote a very thorough review of the 9th Circuit’s decision last night (see “Court Of Appeals Unanimously Rejects Trump’s Travel Ban: Full Ruling“). Here is the summary of the court’s decision:
“We hold that the government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.”The three-judge panel hearing the case included Judges William C. Canby Jr., a Jimmy Carter appointee; Richard R. Clifton, a George W. Bush appointee; and Michelle T. Friedland, a Barack Obama appointee.
“Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree,” they wrote.
“In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”
That Gorsuch confirmation can’t come soon enough for the Trump administration.