In a surprise move, the Department of Justice is now saying that Donald Trump “intends in the near future to rescind” his executive order on immigration, and will “replace it with a new, substantially revised” order. If the DOJ’s lawyers are correct about Trump’s plans—and they might not be—it could mean that all litigation stemming from Trump’s immigration ban will come to a halt and that the administration intends to essentially ctrl-alt-delete its efforts to institute new border restrictions against refugees and visitors from seven majority-Muslim countries.
The government’s new position was revealed in a DOJ filing with the 9th U.S. Circuit Court of Appeals in San Francisco, which dealt Trump a decisive blow last week when a panel of three judges upheld a temporary restraining order against the immigration ban. The primary purpose of the filing was to inform the 9th Circuit that the government does not want the court to revisit its decision en banc—a process that would have put the case in front of a wider panel of judges. Instead, the DOJ seems to have decided that “the most appropriate course would be for the Court to hold its consideration of the case until the President issues the new Order and then vacate the panel’s preliminary decision.”
Though the filing sounds an awful lot like a surrender—the words “SEE YOU IN COURT” do not appear—there is no certainty that Trump won’t continue fighting for his original order even as he prepares a new one. Indeed, at a press conference held Thursday, Trump seemed to contradict the DOJ, telling reporters that his administration was “appealing” the 9th Circuit decision and would continue that fight while also issuing a new executive order next week. “We’ll be going along the one path and hopefully winning that,” Trump said. “At the same time, we will be issuing a new and very comprehensive order to protect our people.”
Got that? No, you don’t, because neither does the government.