SAN FRANCISCO (CN) – Citing the president’s return to the drafting board, the Ninth Circuit agreed Thursday to pause litigation over President Donald Trump’s executive order that banned certain Muslim immigrants and refugees.
Trump tweeted, “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE,” within moments of the Ninth Circuit’s decision.
The court stay came after the Justice Department apprised the judges earlier that day of Trump’s plans. “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 Justice Department said in a briefing. “In so doing, the president will clear the way for immediately protecting the country rather than pursuing further, potentially time-consuming litigation.”
This represents a reverse-course for the Trump administration, which vowed to appeal in the immediate aftermath of the Ninth Circuit’s decision to uphold a federal court order that temporarily prevented the Customs and Border Patrol from enforcing Trump’s executive order.
The Justice Department’s supplement brief indicates the Trump administration will attempt to pursue remedies outside the judiciary, a sentiment the president reiterated during a press conference on Thursday.
“We’re going to put in a new executive order next week some time,” Trump said when asked about the travel ban and its implementation.
Chief U.S. Circuit Judge Sidney Thomas signed the one-page order issued late Thursday, putting preparations for en banc proceedings on hold amid promises by the government to “inform the court of any new developments.”
Trump signed the travel ban after a week in office. It bars entry of all refugees into the United States for 120 days, halts admissions from war-torn Syria indefinitely, and bans entry by citizens of Iraq, Iran, Sudan, Libya, Somalia and Yemen for three months.
The order – which was implemented immediately – threw the nation’s airports into chaos, as many legal permanent residents and green card holders were not permitted to leave the airports. The order also sparked nationwide protests, most of which were held at the airports in question.
On Thursday, Trump repeated his position that implementation of his order was a “very smooth rollout.”
“The only problem that we had is we had a bad court,” Trump told the assembled reporters at the conference. “We had a court that gave us what I consider to be, with great respect, a very bad decision.”
The Justice Department also took issue with the decision in its brief.
“The panel’s decision is based on a misunderstanding of the scope of the order,” the department said, adding the travel ban only applied to “aliens who have never entered this country.”
During the initial hearing in front of the Ninth Circuit, the judges scolded the Trump administration for not being clearer about whom the travel ban was intended to target.
The department also said in its brief that the decision of the three-judge panel – comprised of U.S. Circuit Judges Michelle Friedland, William Canby and Richard Clifton – erred on the points of standing and whether noncitizens have constitutional rights.
The briefing was requested by the Ninth Circuit after an unidentified judge requested an en banc hearing of the case. The rehearing would involve 11 circuit judges, rather than the three-judge panel that made last week’s decision, and would essentially reconstitute a rehearing of the case.
While the en banc was seen by some as a slim opportunity for the Trump administration to prevail on the merits without a Supreme Court appeal, the Justice Department said Trump will revise the order instead.
“The government respectfully submits that the most appropriate course would be for the court to hold its consideration of the case until the president issues the new order and then vacate the panel’s preliminary decision,” the department said.
The dispute stems from a lawsuit brought by Washington state, which has since been joined by the state of Minnesota.
Washington state claims the travel ban is illegal and cited campaign statements by Trump and his advisers as evidence of the intent to discriminate on the basis of religion with the ban.
U.S. District Judge James Robart of the Western District of Washington granted a temporary restraining order, barring the Trump administration from carrying out the provisions of the ban. Since the seven affected nations are largely Muslim, many have called it a Muslim ban – a term Trump himself used on the campaign trail.
The president asserted the ban does not target Muslims, but seeks to keep out people from nations known to be “terror prone.” The Trump administration immediately appealed to the Ninth Circuit, arguing the president has broad discretion regarding the nexus between immigration and national security.
The Ninth Circuit refused to overturn Robart’s restraining order, saying judicial review of the executive branch is appropriate even in matters of national security and that the public statements Trump made during the campaign regarding a Muslim ban raised constitutional questions.
The appellate panel also ruled that the states have standing because faculty and students at state-run universities were adversely affected by the ban.
On Thursday, Trump characterized the Ninth Circuit as a “bad court” saying 80 percent of its decisions get overturned.
The Ninth Circuit did have 79 percent of the cases taken up by the Supreme Court between 2010 and 2015 overturned. However, the Sixth Circuit and the 11th Circuit both had higher reversal rates at 87 and 85 percent, respectively. The average is about 70 percent, according SCOTUSblog.
Trump said he will unveil the revised executive order on the travel ban next week.