WASHINGTON – President Donald Trump said Friday that he is considering rewriting his executive order temporarily barring refugees and citizens of seven Muslim-majority countries from entering the country, indicating that the administration may try to quickly restore some aspects of the now-frozen travel ban or replace it with other face-saving measures.
Trump told reporters aboard Air Force One that he would probably wait until Monday or Tuesday to take any action, and White House Chief of Staff Reince Priebus said several options – including taking the case to the Supreme Court – were still on the table.
Trump hinted that the ongoing legal wrangling might move too slowly for his taste, though he thought he would ultimately prevail in court.
"We will win that battle," he said. "The unfortunate part is that it takes time statutorily, but we will win that battle. We also have a lot of other options, including just filing a brand-new order."
He said among the revisions he might make are "new security measures."
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A three-judge panel of the U.S. Court of Appeals for the 9th Circuit ruled unanimously Thursday that Trump's travel ban should remain suspended, allowing people previously barred to continue entering the United States. While the judges were deciding only whether national security concerns necessitated immediately reinstating the ban – and not whether it could ultimately pass constitutional muster – their ruling put the future of Trump's order in doubt.
White House and Justice Department officials began mulling several options as new Attorney General Jeff Sessions was briefed on the matter. They could rewrite the order in hopes that modifications would help it pass legal muster. They could ask the Supreme Court or the full 9th Circuit to intervene immediately. Or they could wage a battle in the lower courts, hoping that judges considering more squarely whether the issue ran afoul of the Constitution would land on Trump's side.
On Friday, the White House injected an element of confusion when an official told reporters that the administration would not seek Supreme Court intervention, only to take it back and be contradicted by Priebus minutes later. Meanwhile, a 9th Circuit judge, without prompting, called for a vote to determine whether the entire court should rehear the case. The court asked for briefs from those involved in the case by Thursday.
No matter what it chooses to do, the White House will face a difficult battle to restore the ban, particularly in the short term. The 9th Circuit judges indicated that some of the administration's proposed concessions – which presumably could turn into rewrites – don't go far enough. Government lawyers also cannot undo Trump's campaign trail comments about wanting to stop all Muslims from entering the country and his assertion after taking office that Christians would be given priority. That is potentially compelling evidence that even a watered-down order might be intended to discriminate, said Leon Fresco, who worked in the office of immigration litigation in President Barack Obama's Justice Department.
"The problem is this is such a bad case for the government to be making these arguments," Fresco said.
If judges fear that the government will revert to its original position once litigation has stopped, "the court won't usually dismiss those matters, because they say, 'Look, it's likely to come up again,' " Fresco said.
The initial ban, introduced two weeks ago, on people from Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen was set to expire in 90 days, and the ban on refugees in 120 days. The order ostensibly enacted a temporary pause on people entering the country so that the administration could develop more stringent vetting procedures. Trump referenced "extreme vetting" when asked what a modified order might entail.
"We have very, very strong vetting," he said. "I call it extreme vetting, and we're going very strong on security."
In a separate case in federal court in Virginia, a judge Friday pressed the government to produce any evidence that a ban on travel was necessary on national security grounds. Judge Leonie Brinkema said the presidential order "has all kinds of defects" and "clearly is overreaching" when it comes to long-term residents of the United States. She said there was "startling evidence" from national security professionals that the order "may be counterproductive to its stated goal" of keeping the nation safe.
The 9th Circuit judges also rejected the Justice Department's request to narrow a lower-court judge's freeze of the ban, saying that even if that freeze was too broad, it is "not our role to try, in effect, to rewrite the Executive Order." They asserted their authority to serve as a check on the president's power, while noting that their ruling was limited to whether the ban should be temporarily suspended.
The president has forcefully said all week that judges were wrong in their decisions on his order and that immigration law gives him broad authority to restrict foreigners from entering the United States. On Friday he posted on Twitter a quote from a Lawfare article, which noted that the 9th Circuit judges had not cited in their opinion the section of the Immigration and Nationality Act that gives him such powers.
There seemed to be a growing view from commentators on the right, though, that the Trump administration might be better off to abandon this fight, rewrite portions of the executive order and thus be on more solid ground for future legal battles.
Edward Whelan, an influential voice in the conservative legal world who writes for the National Review Online, indicated on Twitter that he had doubts about the 9th Circuit's ruling but also concerns about whether the Supreme Court would reinstate an executive order he viewed as flawed.
He tweeted: "2 modest propositions: (1) Courts are getting it wrong on EO; and (2) this is not the right legal battle to fight. Do the EO right this time." "EO" is a common acronym for "executive order."
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In the court hearing before the 9th Circuit, Justice Department lawyers offered a possible concession. The court, they said, could permit travel for those "previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future," but not, perhaps, for those without visas already.
The judges rejected that argument, saying that such relief would not help U.S. citizens who "have an interest in specific non-citizens' ability to travel to the United States," nor would it allay concerns about the due process rights of people in the country illegally.
Justice Department lawyers also argued that the ban no longer applied to green-card holders – citing guidance from the White House counsel issued after the ban took effect – and that challenges on those grounds should thus be invalidated. On that, too, the judges disagreed.
"The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments," the judges wrote. "Moreover, in light of the Government's shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings."
The White House could adjust the order in other ways, such as by exempting students or other categories of people. That would be significant because it might affect the ability of states such as Washington and Minnesota to have adequate standing to sue.
But analysts said the administration is likely to still face vigorous challenges.
"Whatever they do, I think they're running into a problem," said Reaz H. Jafri, the global head of immigration at the Withersworldwide law firm. "I don't know what type of a ban they can possibly craft that can be constitutional."
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Robert Barnes and John Wagner contributed to this report.