Washington state’s solicitor general called Monday for steps toward an appeals-court trial, but the Justice Department indicated it’s in no hurry for further legal action to fight the suspension of President Donald Trump’s executive order.
WASHINGTON — The Justice Department said in a brief filed Monday that it would continue to defend President Donald Trump’s targeted travel ban in the federal appeals court in San Francisco, which on Thursday refused to reinstate it.
The department did not say whether it would try to appeal that ruling to the Supreme Court. But its silence on the matter suggested that the Trump administration will not pursue an immediate appeal.
The administration had asked a three-judge appeals-court panel for prompt action to avert a national-security emergency — and was rebuffed last week — after a trial judge had blocked the ban, allowing refugees and visitors from seven Muslim-majority nations into the United States. The Justice Department has moved at a more deliberate pace since its loss Thursday, an indication that it will not file an emergency application in the Supreme Court.
The administration may have decided that the chances of success at the Supreme Court are poor. For the last year, the court has had just eight members, and a 4-4 tie would leave the appeals-court ruling in place. It would take five votes to overturn the ruling, and it appears unlikely that any of the court’s four more liberal justices would support the administration’s position.
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The Justice Department asked the trial judge, Judge James L. Robart, of the U.S. District Court in Seattle, to “postpone any further proceedings” in his court while the appeals court, the 9th U.S. Circuit Court of Appeals, considers whether to rehear the case.
Lawyers for Washington state and Minnesota, which are challenging the ban, urged Robart to order the parties to start exchanging information in preparation for trial.
“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,” Noah G. Purcell, Washington’s solicitor general, wrote.
Unless the appeals court or the Supreme Court acts, Robart’s Feb. 3 temporary restraining order, which blocked the key provisions of targeted travel ban, will remain in place. The ban, one of the first executive orders Trump issued after taking office, suspended worldwide refugee entry into the United States. It also suspended travel from seven Muslim-majority nations — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — for 90 days.
On Thursday, a three-judge panel of the 9th Circuit refused to stay Robart’s order. On Friday, an unidentified appeals-court judge called for a vote on whether the three-judge panel’s ruling should be reheard by a larger panel of the 9th Circuit. Those briefs are due Thursday.