On Thursday, February 9, 2017, a three-judge panel of the US Court of Appeals for the Ninth Circuit (the “Court”) denied the Department of Justice’s emergency motion, which left intact the temporary restraining order (“TRO”) of the US District Court for the Western District of Washington barring executive action to restrict travel into the United States by nationals of seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) and temporarily suspend the admission of refugees.1 Following the ruling, one of the Court’s judges entered a sua sponte request for “en banc2 review of the panel’s decision. On February 10, 2017, the Chief Judge ordered simultaneous briefing by February 16, 2017, with the views of the parties on whether the case should be reheard en banc. The Ninth Circuit ruled on February 16, 2017, that an en banc hearing will not proceed.

In its brief submitted today, the federal government (“Government”) advised the Court that further proceedings are unnecessary as a new substantially revised Executive Order is forthcoming. The brief summarized the Government’s position as follows, “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 brief asks the Court to “hold its consideration of the case until the President issues a new order and then vacate the panel’s preliminary decision.”

The brief submitted today by the states of Washington and Minnesota advised the court that en banc review of this matter is unnecessary given that, in the view of the states, the unanimous panel decision reached the correct conclusions on the issues raised by the Government’s application for an emergency stay of the TRO.

With regard to the content of a new executive order, the precise parameters are not yet public. However, we can anticipate the following changes in a new executive order.

  • Lawful permanent residents of the United States are likely to be exempt from travel restrictions, as the administration already took the position that unrestricted travel by this group is in the “national interest.”
  • Persons holding multiple passports are likely to be exempt from such travel restrictions so long as they travel on the passport of a non-restricted country. This is also consistent with the position taken by the administration following issuance of the original Executive Order.
  • Individuals with valid nonimmigrant visas (e.g., work or student visas) who have already been admitted to the United States may be made exempt from new restrictions for the duration of their current visas, although the administration has not taken a position on this group yet.

1 States of Washington and Minnesota v. Trump, No. 17-35105, US Court of Appeals, Ninth Circuit.
2 Given the large number of judges on the Court, the Ninth Circuit rules provide for a modified en banc panel that includes the Chief Judge and ten judges selected at random from among all non-recused members of the court.