By Josh Gerstein
March 7, 2017
The Trump administration has withdrawn its appeal of the injunction against President Donald Trump's first travel ban executive order, despite the president's vow that government lawyers would continue to defend its legality.
The move comes one day after Trump signed a new, substantially revised order that removes several aspects of the original order that were flagged as problematic by a 9th Circuit Court of Appeals panel in a ruling last month.
The terse filing at the 9th Circuit Tuesday said the plaintiffs in the suit, the states of Washington and Minnesota, had agreed to dismiss the appeal.
The withdrawal of the appeal may have little direct effect on the Washington and Minnesota suit, still pending before U.S. District Court Judge James Robart, who blocked the key parts of the first order last month.
However, Justice Department lawyers had previously asked the 9th Circuit to vacate the ruling a three-judge panel issued last month, refusing to stay Robart's order. Now, that decision will remain on the books as a precedent, unless overturned by a larger group of 9th Circuit judges.
Dropping the appeal will mean less work for the Justice Department as it seeks to fight off an expected swarm of legal challenges to Trump's new travel ban order.
A Justice Department spokeswoman declined to comment on the development.
“The Trump Administration’s decision to withdraw their appeal — and pay our costs — confirms what I said yesterday: The President’s original travel ban was unconstitutional," Washington state Attorney General Bob Ferguson said in a statement. “Contrary to President Trump’s indefensible criticisms of the judiciary, his concession today admits that Judge Robart got it right when he enjoined the original Executive Order."
Ferguson has not yet indicated whether he plans to challenge the new order. In theory, litigation over the old one could still continue before Robart since his initial ruling blocking the original order was a preliminary one.
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