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The US Department of Justice on Monday told a district court judge that it wants to postpone further consideration of President Donald Trump’s travel ban until a federal appeals court decides whether to reconsider its order blocking the measure.
A three-judge panel of the US Court of Appeals for the 9th Circuit on February 9 refused to reinstate the president’s halt on global refugees and travelers from seven majority-Muslim nations.
One 9th circuit judge subsequently asked that a larger group of judges reconsider the decision to uphold US District Court Judge James Robart’s February 3 order, which blocked the travel restrictions from taking effect. The appeals court has set a Thursday deadline for arguments on the proposed rehearing from DoJ and the states of Washington and Minnesota, which had sued to stop the ban.
Leon Fresco, former deputy assistant attorney general for immigration litigation in the Obama administration, said the latest government motion was a largely procedural move “that makes perfect sense.”
Even if the 9th circuit rejects the rehearing request, a judge on the losing side could file a written dissent that would support the administration’s position.
Washington and Minnesota told the district court that they favour proceeding in the lower court with an argument on the merits.
At issue in the dueling filings was whether the appeals court had treated Judge Robart’s temporary restraining order as if it were a preliminary injunction, eliminating the need for arguments over that question in the lower court.
The courtroom skirmishing comes as the White House says it may issue a new executive order designed to address criticisms leveled by judges in several district courts.