After saying that he would defend his executive order on the travel ban, President Trump indicated Friday that he won’t be taking the case to the Supreme Court. Instead, the order will be argued on its merits before the Ninth Circuit.
“The Trump administration as well as the Department of Justice has been weighing the options,” Pamela Brown from CNN reported, “and we have learned from sources that the Department of Justice will not immediately appeal the travel ban ruling to the Supreme Court as of now.
The White House, apparently, doesn’t want to take the risk of losing an appeal on the temporary restraining order because of the fear of a four-four split at the Supreme Court, which would leave the Ninth Circuit’s recent ruling in place. That ruling kept the travel ban on hold, of course as you know, that came down yesterday. But they’re still considering reissuing a new re-worked executive order. The source I spoked with cautioned though that a new order risks making the current lawsuit moot, which the administration may not want to do because it believes it could ultimately win the case on the merits.
Brown explained the the other reason that a new executive order could be appealing to the Trump administration – that would be a way the president to avoid “being subpoena’d on the matter about his discussions regarding a Muslim ban.” Brown continued, “And you’ve already heard the states say they’re in discovery, they’re going to put in those requests, so the White House may not want to enter into a subpoena and have to talk about those things. So the executive order would be one way around that.”
— The Situation Room (@CNNSitRoom) February 10, 2017
Trump had promised to defend the ban in a tweet immediately following the decision from the appeals court, writing, “SEE YOU IN COURT,” but this falls well within the scope of that vow, as he has a few options about how to do so.
The decision striking down his ban and keeping the restraining order in place cited Trump promising his crowds many times during the presidential campaign that he would impose a “Muslim ban,” though he and his defenders now say his executive order is not a Muslim ban.
Conservative commentator Charles Krauthammer called the decision “disgraceful” Thursday and characterized it as an usurpation of the powers of the executive.
Update: The White House says now that Trump has changed his mind and might still take the case to the Supreme Court! More details here.