The Justice Department told a federal court Thursday that there's no point in further court battles over President Trump's executive order on immigration, because it will soon be replaced by a different one.
"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 government said in a filing submitted to the Ninth Circuit Court of Appeals in San Francisco.
The appeals court said Thursday evening that consideration of the case was on hold because of the request and new order.
A three-judge panel of the court last week refused to lift a stay that blocked the government from enforcing the order. Lawyers for the government and the states that opposed the travel restrictions were asked to submit legal briefs on whether the full appeals court should re-hear the case.
The states of Washington and Minnesota understandably said no, calling last week's ruling in their favor "careful, thoughtful, and narrow."
But while the Justice Department said the ruling was deeply flawed, it said the most appropriate course now "would be for the court to hold its consideration of the case until the president issues the new order."
As the legal briefs were being filed, President Trump was announcing that he would issue "a new and very comprehensive order to protect our people. That will be done sometime next week, toward the beginning or middle at the latest."
The original order, issued Jan. 27, imposed a 90-day pause on allowing citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen to enter the U.S. And it suspended all refugee admissions for 120 days.
During those period, the administration said, the government would assess the dependability of information provided by those countries that is used by American authorities in assessing a person's background.
Washington, joined later by Minnesota, claimed the executive order violated the Constitution and federal immigration law and asked for an immediate stay to block its enforcement. A federal judge in Seattle granted that request on Feb. 3, and on Feb. 9, the three-judge panel unanimously rejected the government's request to lift the stay.
The Justice Department said when the new executive order is issued, the Ninth Circuit ruling should be vacated, calling it "seriously flawed in several important respects."
The government said the states did not have legal standing to sue on behalf of their residents. And it said the appeals court wrongly concluded that nearly all visa holders in the U.S. have a right to an individualized hearing before they could be subject to the executive order's limitations.
Most legal experts agree that when a revised executive order is issued, the court ruling blocking enforcement of the current one would cease to have legal effect, and the government could immediately begin enforcing the new one.
That might launch a whole new round of lawsuits. If the new order applied to a smaller group of people, such as those from the affected countries who have never come to the US before, it might be harder to defeat in court.
But if it covers the same countries as the original order, challengers could be expected to argue that it discriminates on the basis of religion. A federal judge in Virginia issued a ruling Feb.13 blocking enforcement of part of the executive order in that state.
Judge Leonie Brinkema said the travel restrictions improperly discriminated against Muslims.