(CN) – A federal judge on Monday denied the Trump administration’s effort to delay a ruling on the controversial travel ban to exclude entry into the United States by travelers from seven Muslim-majority nations.
The fact that the Justice Department is still filing motions in a case pending in the Western District of Washington shows President Donald Trump may not be willing to appeal the case to the Supreme Court as many anticipated, according to legal analysts.
On Monday, the Justice Department asked U.S. District Judge James Robart to temporarily pause the case, asking him to wait until the Ninth Circuit decides whether it will reconsider its refusal to reinstate the travel ban en banc. The government’s lawyers also questioned whether the Ninth Circuit is better suited to rule on whether to change Robart’s temporary restraining order of the travel ban into a preliminary injunction.
Robart denied the motion from the bench, saying he was not inclined to tolerate further delays in the case.
“I’m not prepared to slow this down,” Robart said during Monday’s proceedings, according to multiple reports.
In its motion, the Justice Department said the case in Washington state should not proceed until the Ninth Circuit decides whether to reconsider its panel’s refusal to set aside the restraining order en banc. An en banc rehearing would involve 11 circuit judges, rather than the three-judge panel that made last week’s decision.
The request for an en banc rehearing came from one of the 29 active Ninth Circuit judges, rather than from the Trump administration or Washington state, though which circuit judge is unknown.
Also, the Justice Department argued the Ninth Circuit may have jurisdiction over whether to change the temporary restraining order on the travel ban into a less temporary preliminary injunction.
Robart initially issued the temporary restraining order on Trump’s travel ban on Feb. 3, about six days after Trump signed his controversial executive order that threw the nation’s airports and court system into disarray.
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.
All seven nations are largely Muslim, prompting many to call it a ban on Muslims. The White House has since pushed back and said the executive order has nothing to do with religion and more to do with the targeted nations being terror-prone and therefore a national-security risk.
Washington state sued, saying the ban was illegal and citing campaign statements by Trump and his advisers as evidence of discriminatory intent behind the ban. Robart granted a temporary restraining order, essentially preventing the Trump administration from carrying out the provisions of the ban.
The Trump administration immediately appealed to the Ninth Circuit, asserting the president has broad discretion regarding the nexus between immigration and national security. Circuit Judges William Canby, Michelle Friedland and Richard Clifton heard the appeal and issued a ruling in favor of Washington state this past Thursday, keeping the restraining order in effect.
That ruling meant the case could continue in Robart’s courtroom, and he gave the parties until Friday to brief whether to make the restraining order into a preliminary injunction – leading to the Justice Department’s request to delay the case while the Ninth Circuit sorts things out on its end.
Legal analysts took to social media Monday saying the government’s filing means Trump probably won’t appeal the Ninth Circuit’s ruling to the Supreme Court as many had anticipated. Instead, they said Trump appears to have opted to fight the case on the two current fronts – federal court in Washington state and before the Ninth Circuit.
The administration has also discussed rewriting the travel ban to make it more narrowly tailored and easier to defend in court, according to reports. Trump also defended the concept of limiting entrance of some travelers into the United States during Monday’s joint press conference with Canadian Prime Minster Justin Trudeau.
“We want to have a big, beautiful, open door, and we want people to come in and come in our country,” Trump said. “But we cannot let the wrong people in, and I will not allow that to happen during this administration.”
Robart set the deadline for briefing on the preliminary injunction question for Friday and is likely to rule soon thereafter.