U.S. President Donald Trump said late on Friday aboard Air Force One that he is considering issuing a new travel ban executive order, while White House Chief of Staff Reince Priebus said the administration could still escalate a legal dispute over Trump’s original travel ban to the Supreme Court.
In a step that triggered the most serious legal confrontation yet for the new Republican administration, Trump two weeks ago issued an executive order banning entry into the United States to refugees and citizens of seven Muslim-majority countries, triggering nationwide protests and legal challenges.
The fallout from the order exposed divisions within the White House and showed a young Republican administration still struggling to find its bearings after less than a month in power.
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A federal judge in Seattle last week issued a temporary restraining order (TRO) putting the president’s travel ban on hold, eliciting a barrage of angry Twitter messages from Trump. The 9th Circuit court judge’s suspension was upheld by an appeals court in San Francisco on Thursday, raising questions about Trump’s next step.
In a surprise visit with reporters aboard Air Force One en route to Florida from Washington, Trump said he was considering “a brand new order” that could be issued as soon as Monday or Tuesday if he decides to move in that direction.
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Aboard the flight with Trump were his wife Melania, daughter Ivanka, son-in-law Jared Kushner and Japanese Prime Minister Shinzo Abe and his wife Akie. The Trumps landed in the evening and went to their Mar-a-Lago estate in Palm Beach.
Earlier, a White House official had said that the administration was not planning to escalate the legal dispute to the Supreme Court, but Priebus later on Friday told reporters that such a move remained a possibility.
“Every single court option is on the table, including an appeal of the Ninth Circuit decision on the TRO to the Supreme Court, including fighting out this case on the merits,” Priebus said.
“And, in addition to that, we’re pursuing executive orders right now that we expect to be enacted soon that will further protect Americans from terrorism.”
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Trump’s order, which he called a national security measure meant to head off attacks by Islamist militants, barred people from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering for 90 days and all refugees for 120 days, except refugees from Syria, who are banned indefinitely.
Trump could rewrite the order to explicitly exclude green card holders, or permanent residents, said a congressional aide familiar with the matter who asked not to be identified. Doing that could alleviate some concerns with the original order expressed by judges in the 9th Circuit court.
A new order, however, could allow Trump’s critics to declare victory by arguing that it would the first time he was forced to change course.
On Air Force One, Trump said regarding the San Francisco court fight: “We will win that battle. The unfortunate part is that it takes time statutorily… We need speed for reasons of security.”
An official familiar with Trump’s plans said if the order is rewritten, among those involved would likely be White House aide Stephen Miller, who was involved in drafting the original order, as well as officials of the National Security Council, Justice Department and Department of Homeland Security.
Independently of the Trump administration, an unidentified judge on the 9th Circuit requested that the court’s 25 full time judges vote on whether the temporary block of Trump’s travel ban should be reheard before an 11-judge panel, known as en banc review, according to a court order. The 9th Circuit asked both sides to file briefs by Thursday.
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Should Trump issue a new order, he is still likely to face legal challenges, as opponents could ask the court to let them amend their complaints, said Alexander Reinert, a professor at Yeshiva University’s Cardozo School of Law in New York.
A new order from Trump could immediately put a travel ban back in place, but those who have filed lawsuits, including the state of Washington, could return to the same judge to ask for another hold.
In a separate case on Friday, Justice Department lawyers argued in federal court in Alexandria, Virginia against a preliminary injunction that would put a longer hold on Trump’s executive order than the Seattle court ruling, but focused solely on visa holders.
Judge Leonie Brinkema asked the administration for more evidence of the threat posed by citizens of the seven countries.
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