President Donald Trump’s administration dropped on Thursday its appeal of a court ruling that suspended his travel ban targeting refugees and seven Muslim countries and said it would replace the measure with a modified version.
The Justice Department announced the move in a brief filed with the Ninth Circuit Court of Appeals in San Francisco. It said the new order would address complaints from a three-judge panel that parts of the order were unconstitutional.
“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 brief states.
Trump has said his directive, issued last month, was necessary to protect the United States from attacks by Islamist militants. It barred people from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the country for 90 days. Refugees were banned for 120 days, except those from Syria, who were banned indefinitely.
The abrupt implementation of the order, however, plunged the immigration system into chaos, sparking a wave of criticism from targeted countries, Western allies and some of America’s leading corporations, especially technology firms, which lean heavily on immigrant talent.
US District Judge James Robart in Seattle suspended the order nationwide after Washington state challenged its legality, eliciting a barrage of angry Twitter messages from Trump against the judge and the court system. A three judge 9th US Circuit Court of Appeals panel last week upheld Robart’s ruling.
In a news conference on Thursday, Trump said his rollout of the travel ban was “very smooth” but the administration got a bad court decision. He said his new order would be written to conform to legal rulings.
“The new order is going to be very much tailored to what I consider to be a very bad decision,” he said. “We can tailor the order to that decision and get just about everything, in some ways more.”
The Justice Department court filing said Trump’s order would be “substantially revised” but did not provide details. Last week an congressional aide who asked not to be identified told Reuters that Trump might rewrite the original order to explicitly exclude green card holders, or permanent residents.
An unidentified 9th Circuit judge last week requested that the court’s 25 full-time judges vote on whether that should be reconsidered by an 11-judge panel, known as en banc review.
While the Justice Department on Thursday did not seek en banc review, it did take issue with the 9th Circuit’s ruling, saying “it should not remain circuit precedent,” and asking that it be vacated when the president issues a new order.
In a separate court filing, the states of Washington and Minnesota said the 9th Circuit panel ruling “is firmly grounded in precedent.” The appeals court should not reconsider the ruling, they said.
A representative for Washington state’s attorney general did not immediately respond to a request for comment on the Trump administration’s planned new executive order.