Looks like President Donald Trump won’t be going to the Supreme Court just yet.
The Trump administration would like to wait and see what the appeals court that ruled against the president’s travel ban on refugees and immigrants from seven Muslim-majority countries will do with the case before its lawyers decide their next steps.
After the U.S. Court of Appeals for the 9th Circuit last week declined the federal government’s request to reinstate the executive order on immigration, U.S. District Judge James Robart, the judge who on Feb. 3 first put a freeze on the ban nationwide, directed the Department of Justice and the states of Washington and Minnesota to propose how to proceed with the dispute.
DOJ said in a filing Monday that it will await further instructions from the 9th Circuit before proceeding to defend the merits of the lawsuit, which alleges that the travel ban amounts to unconstitutional religious discrimination.
“Accordingly, at this time, defendants believe the appropriate course is to postpone any further proceedings in the district court,” lawyers for the administration told Robart in the filing.
In an all-caps Twitter post last Thursday, Trump responded to the legal setback suggesting he’d like to “see” the states at the next level up, the U.S. Supreme Court, and the administration sent confusing signals late on Friday on whether that appeal would be filed or not. Officials also suggested that a new executive order restricting travel was in the works.
But it’s the 9th Circuit itself which appears to be guiding the response by the federal government. One day after the court declined to restore the travel ban, Chief Judge Sidney Thomas announced that an unidentified judge on the 9th Circuit had called for a vote among the 25 active judges on the appeals court to determine whether Thursday’s unanimous ruling against the Trump administration should be reconsidered by a super-panel of judges.
If a majority of those active judges agrees to rehear the case, then the 9th Circuit’s ruling would be no more, and Thomas plus 10 other judges chosen at random would then proceed to hear oral arguments again and later issue a new ruling. The chief judge gave the federal government and the states until Thursday to offer their views on whether this rehearing should take place.
DOJ cited this development in the 9th Circuit in its separate response to Robart on Monday, suggesting that he should put everything on hold while the appeal runs its course.
“Further proceedings in the Ninth Circuit will likely inform what additional proceedings on a preliminary injunction motion are necessary in district court,” the lawyers said.
But Washington and Minnesota, in their own brief filed Monday, responded that they’re essentially ready to proceed to discovery in the case ― the phase before trial where the two sides in a civil case seek out information from the other in order to prove their allegations.
“Proceeding directly to discovery ... will not interfere with the case on appeal,” the states said in their filing. “To the contrary, it will allow this Court to consider the merits of the case in an efficient manner. Given the gravity of the States’ constitutional allegations, Defendants’ stated national security concerns, and the public interests at stake, the States respectfully submit that discovery should proceed without delay.”
After a hearing Monday, Robart sided with the states and ordered the two sides to proceed independent of anything the 9th Circuit might do, according to Reuters.
Bob Ferguson, Washington state’s attorney general, suggested Sunday that he would seek to prove “what truly motivated” Trump’s executive order on immigration. He noted that his office would attempt to obtain White House documents and internal exchanges that show that the travel ban was designed with ill will toward Muslims and the Islamic faith.