The smart play but surprising even so, as Trump famously doesn’t like to admit mistakes.
Although I guess he’d say it’s the Ninth Circuit’s mistake that compelled him to do this, not his own. In fact, he did say it:
“The new order is going to be very much tailored to what I consider to be a very bad decision,” said Trump during a news conference, referring to a decision by the Ninth Circuit Court of Appeals that blocked his travel ban earlier this month.
Meanwhile, the Justice Department filed a 47-page brief Thursday telling the Ninth Circuit Court of Appeals that it does not need a larger panel of judges to rehear its failed emergency challenge to a lower court’s temporary suspension of Trump’s executive order on immigration at this time because a new order is on the way.
The Justice Department wrote at length about the “seriously flawed” Ninth Circuit ruling from last week, but neverthless said: “(r)ather 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.”
Consider the DOJ’s dilemma. If they fight on in the Ninth Circuit for a hearing by the entire court of the TRO currently in place on the ban, they’re likely to lose again. It’s a left-wing circuit; adding more liberal judges to the panel isn’t going to get you closer to a right-wing outcome. Then they’d have the option of appealing to the Supreme Court, but Neil Gorsuch isn’t likely to join the bench there until April sometime. Unless you think one of the Court’s four lockstep Democratic hacks is going to switch sides and vote for Trump in an extremely politically charged case, the best-case scenario for SCOTUS is a 4-4 split — and when the Court is tied, it means that the lower court’s ruling stands. The Ninth Circuit’s judgment would remain in place after all. Meanwhile, weeks would pass while the litigation played out with the White House momentarily powerless to stop visitors from the seven countries targeted in the ban from entering the U.S. National security is a perfectly good reason for Trump to bite the bullet, withdraw the current order, and put something new in place — this time thoroughly vetted by the DHS and DOJ and written by the White House’s army of lawyers instead of, say, Stephen Miller.
It’s a safe bet that green-card holders will be exempt from the ban in the new order, whereas in the old one they were initially to be admitted on a case by case basis. Rich Lowry considers another way to tighten things up:
It could re-fashion the executive order by, say, removing the issue with lawful permanent residents and giving up on the temporary ban, while focusing on stricter vetting through visa issuance procedures at the embassies and via secondary screenings at the airports. This wouldn’t make the legal attacks go away. But it would shift the terrain in the administration’s favor at the same time it wouldn’t give up the core of the policy, as Krauthammer persuasively argues. Remember: the temporary ban is not supposed to be about the temporary ban, but about providing a bridge to stricter vetting.
Right, the more the White House can do now to emphasize “extreme vetting” over “banning” the more it’ll help Trump by demonstrating that the new policy is narrowly tailored towards national security screening, not out-and-out persona non grata status for entire countries. It may also be that the new EO will make a point of stressing that the ban doesn’t apply to visitors from most Muslim countries, maybe even going so far as to name them individually (Turkey, Jordan, Indonesia, etc). Remember, one of the most controversial holdings in the Ninth Circuit ruling was that Trump’s criticism of Muslims as a private citizen and a presidential candidate could be used as evidence to consider whether the travel ban was actually designed to discriminate against people of a particular religion in the guise of targeting a small number of nations dominated by that religion. Anything Trump can do in the order to counter that impression of his motives is a good idea; you never know what the Supreme Court will do with the Ninth Circuit’s precedent of scrutinizing the president’s statements for evidence of intent. Another thing he could do, of course, would be to add non-Muslim countries with a major terrorist presence to the ban to prove that it’s not aimed at any religion, although that would create problems of its own. Is it worth alienating Colombia, even just for 90 days, by adding them to the order because of FARC?
If you think Trump’s criticism of judges has been tough so far, wait and see what happens if the next order also ends up being blocked by a court. He’s behaved as a traditional president would in defending the travel ban to this point, fighting for it in court and accepting the Ninth Circuit’s adverse judgment insofar as he’s willing to scrap the order and write a new one, but if the courts bottle up every attempt to write a legally compliant order — especially when the president’s supposed to enjoy broad power in immigration enforcement — suspicions of politicization are going to lead some of his fans to encourage him to just ignore the courts and keep the ban in place. We’ll see what he does then. Exit question: Does the DOJ have Trump’s approval to drop its case in the Ninth Circuit? I ask because he said at today’s press conference, “We are appealing that and we are going further. We’re issuing a new executive action next week that will comprehensively protect our country. So we will be going along the one path and hopefully winning that at the same time we will be issuing a new and very comprehensive order to protect our people.” That … doesn’t sound like he’s giving up on the appeal to me.