By Jaweed Kaleem
Los Angeles Times
In a filing to a Seattle federal court Monday, the Department of Justice suggested it would not immediately turn to the U.S. Supreme Court to ask for the Trump administration’s travel moratorium to be reinstated after an appeals court dealt a blow to it last week.
In the filing, Acting Assistant Attorney General Chad Readler told the U.S. district court in western Washington that the department wanted to see how the case over the travel ban plays out in the 9th Circuit Court of Appeals before proceeding with the case in the lower court.
It’s the Seattle court where Judges James L. Robart on Feb. 3 called for a temporary nationwide halt to Trump’s travel ban, which the White House appealed to the 9th Circuit. Last week, three 9th Circuit judges upheld Robart’s decision. But then a judge from the full appeals court of 25 active judges asked for the wider court to vote on whether an en banc panel — 11 judges — should reconsider the government’s request to reinstate the travel ban.
Under court rules, the judge who made that request will remain anonymous. Legal scholars say the makeup of the 9th Circuit makes it its unlikely that the court will vote differently if it reconsiders the government’s request. The court has set a deadline of 11 a.m. Thursday for briefs on whether it should vote for an en banc panel.
The Seattle court and the 9th Circuit have not decided on the constitutionality of the travel ban but have only said it would do irreparable harm if it was reinstated while its constitutionality is decided.
Trump could ask the Supreme Court to vote on whether the ban should go forward while lower courts deliberate constitutional questions.
Last week, White House officials first signaled that they would not go to the nation’s highest court, and then said they were still open to the idea. But the court filing on Monday — which does not rule out the Supreme Court option — suggests the White House will avoid going to it for the time being because it wants to see if the 9th Circuit would be open to reconsidering its earlier decision on the ban.
Trump has also said he could sign a new executive order on immigration, which could allow him to circumvent some of the current court fights but possibly open him up to new ones. If signed, it’s expected a new order would be more limited than the current one, which declares a moratorium on travel from nationals of seven mostly Muslim countries, temporarily suspends the admission of refugees and indefinitely bars Syrian refugees.
Meanwhile, the states of Washington and Minnesota, which had brought the Seattle case against Trump, also made a new filing in the district court on Monday. The states argue that the case in Seattle should proceed so the constitutionality of the travel ban can be determined.
Robart was scheduled to hold a conference call with lawyers from both sides on Monday afternoon.
