White House Drops Appeal of Travel Ban Fight

SAN FRANCISCO (CN) – The Justice Department on Tuesday withdrew its Ninth Circuit appeal of the fight against President Donald Trump’s travel ban, on the heels of the White House issuing a revised version of the controversial executive order.

The unopposed motion of voluntary dismissal means the Trump administration’s first foray into the legal system ended in defeat.

Trump has maintained that rather than continue to fight the case as initially anticipated, he preferred to revise the travel ban to address some of the constitutional concerns the courts had focused on during its review of the executive order.

The new executive order, signed with little fanfare on Monday, bans citizens from five nations – Iran, Somalia, Sudan, Yemen and Libya – and puts a 120-day hold on Syrian citizens traveling to the United States.

Trump removed Iraq from the list, reportedly at the request of Defense Secretary Jim Mattis, and changed the policy specific to Syrian citizens from an indefinite ban to a four-month hold.

The revised order also exempts permanent residents and green card holders and removes language that afforded preferential status of persecuted religious minorities, both of which were points of contention in the Ninth Circuit case.

Washington state Attorney General Bob Ferguson, who filed the initial case last month in the Western District of Washington, said the revised order amounts a legal capitulation by Trump.

“By rescinding his earlier executive order, President Trump makes one thing perfectly clear: His original travel ban was indefensible – legally, constitutionally and morally,” Ferguson said in an email. “The president has capitulated on numerous key provisions blocked by our lawsuit, including bans on green card holders, visa holders and dual citizens, an indefinite ban on Syrian refugees, and explicit preferences based on religion.”

Ferguson initially sued in early February, claiming the executive order Trump signed a week after taking office violated the constitution in several regards, not the least of which was the right to equal protection.

Ferguson’s lawsuit said the travel ban was issued out of a discriminatory animus against Muslims, pointing to campaign statements made by Trump and his advisers which called for a “total and complete shutdown” of Muslims entering the country.

U.S. District Judge James Robart granted Washington state’s request to temporarily halt enforcement of the travel ban while the court case proceeded, which allowed many of those affected by the ban to enter the United States.

The Justice Department immediately appealed that stay, saying the travel ban was an urgent matter of national security and that presidents have broad discretion in nexus between immigration and national security.

The Ninth Circuit disagreed, refusing to reinstate the travel ban and affirming the judicial branch’s right to review actions of the executive branch while stating that Washington state had standing due to the ban’s adverse effect on its university system.

While many legal analysts expected the Trump administration to appeal to the Supreme Court, the Justice Department elected to stop fighting the case when Trump decided to revise the order.

The scaled-back version of the ban does not necessarily signal an end to court battles related to the travel ban. Ferguson said his state is reviewing its legal options and told reporters at a Monday press conference that his office still had concerns about the possibility of a discriminatory intent motivating the travel ban.

Hawaii became the first state to sue the Trump administration over the new travel ban on Tuesday, and legal analysts expect similar lawsuits will follow.