The justice department plans to rescind the ban and issue a new executive order to eliminate ‘erroneous constitutional concerns’ after an appeals court loss

This article is more than 3 years old

This article is more than 3 years old

Donald Trump plans to rescind his executive order banning travel from seven Muslim-majority countries and replace it with a new one, according to a Department of Justice court filing made on Thursday.

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“Rather than continuing this litigation, 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 justice department wrote in a brief to the ninth circuit court of appeals.

Enforcement of Trump’s executive order banning travel from seven majority-Muslim countries has been suspended since a federal district judge in Seattle issued a temporary restraining order against it. The injunction was upheld by the ninth circuit court of appeals in a 9 February ruling.

The justice department filing argued that the ninth circuit should not reconsider its 9 February ruling against the travel ban but wait until the new order is released.



The filing contradicted Trump’s own statements at an extraordinary press conference on Thursday, when the president lambasted the ninth circuit, calling it “a bad court” that had made “a bad decision”, and stating: “We are appealing that and we are going further.”

Trump later stated that the new executive order would “comprehensively protect our country” and would be “tailored to the decision we got down from the court”.

Trump’s remarks continued his ongoing war of words against the judiciary. “That circuit is in chaos, and that circuit is frankly in turmoil,” he said of the country’s largest appeals court.

He also twice cited a misleading statistic about the ninth circuit’s rate of having its rulings overturned, saying, “I’ve heard 80%. I find that hard to believe. That’s just a number I heard. That they’re overturned 80% of the time.”

The question of how many rulings the ninth circuit has had overturned has become a major talking point in rightwing media. On 9 February, Fox News host Sean Hannity called the ninth circuit “the most liberal court of appeals, the most overturned court in the country”, according to Politifact.

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A blogpost by rightwing outlet the Daily Caller put forward the “80% reversal rate at supreme court” figure, citing an analysis by the American Bar Association.

Both claims about the court are misleading, as fact-checking sites Snopes and Politifact have pointed out. The supreme court only reviews about 0.1% of all appeals court decisions each year. Of the cases it took up, the supreme court did reverse or vacate 80% of cases from the ninth circuit from 1999 to 2008. But those reversals represent a tiny fraction of the ninth circuit’s total decisions.

The ninth circuit is just the latest branch of the judiciary to feel the president’s ire. He referred to the federal district judge who initially granted the temporary injunction against his executive order as a “so-called judge” on Twitter. During the campaign, he also accused a judge presiding over a case involving his “university” of being biased due to his “Mexican heritage”.

Trump said the new executive order would be released sometime next week.

The Washington state attorney general’s office, which led the successful suit against the travel ban, tweeted that the justice department’s filing was “conceding defeat”.