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But while the Justice Department said the ruling was deeply flawed, it said the most appropriate course now "would be for the court to hold its consideration of the case until the president issues the new order." Shortly before the new court filing, Trump defended the legality of the executive order at a White House news conference, stating that his administration is “appealing” the original result, but also confirming that he would be moving ahead with a new action that will be “tailored” to the court’s earlier decision and issued “sometime next week.”

“We are going further — we’re issuing a new executive action next week that will comprehensively protect our country,” said Trump. Meanwhile, the Justice Department filed a brief Thursday telling the Ninth Circuit Court of Appeals that it does not need a larger panel of judges to rehear its failed emergency challenge to a lower court’s temporary suspension of Trump’s executive order on immigration because a new order is on the way. In 1950 the U.S. Supreme Court noted it was inherent in the executive power to exclude aliens as a “fundamental act of sovereignty.”

Two years later, Congress adopted a provision stating the president “may by proclamation and for such period as he shall deem necessary, suspend the entry of all aliens and any class of aliens as immigrants or non-immigrants” whenever he thinks it “would be detrimental to the interests of the United States.”

In conjunction with Thomas’s order, the Ninth Circuit issued a media advisory summarizing the en banc procedure, stating, “Following the issuance of a three judge panel order or opinion, parties may seek a rehearing before an en banc court (before the entire bench). SAN FRANCISCO – On Feb. 9, a three-judge panel of the Ninth Circuit Court of Appeals upheld the order issued by U.S. District Judge James L. Robart of the Western District of Washington, which enjoined President Donald Trump’s executive order temporarily barring citizens from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen from entering the United States, as well as a temporary ban on all refugee admissions, a ban on all Syrian refugees, a reprioritization of minority religion refugees and capping the number of annual refugee admissions at 50,000.
The U.S. Justice Department tells the Ninth Circuit Court of Appeals that it won't be seeking further action by the court since this executive order will soon be replaced by a different one. Justice added they expect the Ninth Circuit ruling will be vacated once the new executive order is issued.