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Update: Administration’s Possible Next Steps on the Travel Ban

After losing the emergency motion to stay the District Court’s Temporary Restraining Order (the “TRO”) halting the implementation of major portions of President Trump’s January 27th Executive Order, the administration has conveyed that it could pursue any or all of the following options:

1. Issue a new executive order that could have a better chance of surviving judicial scrutiny

  • During a flight last Friday, when questioned on whether he might issue a new executive order, President Trump said, “it very well could be,” and that the new order may be issued on Tuesday (February 14th);

2. Appeal the three-judge 9th Circuit Court decision


  • Immediately following this decision denying an emergency stay of the TRO, President Trump stated his intention to appeal. An appeal to this decision could be filed either to the 9th Circuit Court of Appeals en banc or directly to the U.S. Supreme Court. Meanwhile, related litigation continues in other states.

3. Argue the District Court decision on the merits.


  • The District Court decision in Washington State and others around the country may continue to be litigated on the merits. The administration may then appeal those decisions.

For now, the TRO remains in effect and travel to the individuals from the seven designated countries is governed by the same laws as existing before the Executive Order per the February 9th, 2017, three-judge panel of the U.S. 9th Circuit Court of Appeals unanimous decision. (See our previous alerts on the order here) Therefore, as this continues to be a fast-moving situation, please stay tuned for further updates regarding the status of the Executive Order, the Travel Ban and the ongoing litigation surrounding it.

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