In the ongoing saga over the lower federal courts’ attempt to usurp presidential power over who may enter the country, the Trump administration late last night filed a request for the Supreme Court to review and to halt the Hawaii federal court order that dramatically scaled back Trump’s Travel Order No. 2.

As described in our post about the Hawaii Order, we noted that those exempted from the Order extend far beyond the “close familial” relations as described in the prior Supreme Court ruling which substantially overruled the Hawaii Court’s prior preliminary injunction. Those exempted, according to the Hawaii federal court, include:

“grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States”

While all of these categories expand what the Supreme Court ruled, the “cousins” exemption is particularly abusive. What degree of cousin? I have 2nd cousins I haven’t seen in decades – are they now my “close familial relations” under the Hawaii Order? What about more distant cousins? The Hawaii Order strips the Supreme Court ruling of almost all practical effect, and exempts entire extended families, some of which themselves may number in the hundreds of people.

As The Telegraph notes, these categories plus the easing of restrictions on “refugee” entry, open up tens of thousands of people to entry outside the Travel Order, and I think that’s on the low side.

But that’s not what you hear in the mainstream media, which focuses on grandparents:

As Micky Kaus points out, this is “Classic liberal lawfare: Highlight exclusion of grandparents, use it to sneak in nieces, nephews, cousins, etc.”

This is essentially the pitch the Trump administration makes to the Supreme Court in its Motion for Clarification and Temporary Administrative Stay (full copy embedded at bottom of post)(pdf.)(emphasis added):

In two important respects, however, respondents pressed further in an effort to strip this Court’s stay of significant practical consequence. The district court adopted both of respondents’ arguments, and denied the government’s request for a stay pending
this Court’s review. The government therefore is left to seek this Court’s immediate intervention.

First, for aliens abroad who seek admission as refugees, this Court held that the suspension in Section 6(a) of the Order and the annual cap in Section 6(b) “may not be enforced against an individual * * * who can credibly claim a bona fide relationship with a person or entity in the United States.” IRAP, slip op. 13. Respondents do not contend that the government has applied Sections 6(a) and 6(b) to refugees who themselves have developed actual, bona fide relationships with U.S. entities. Rather, respondents object that, for every refugee who is likely to enter the United States while Sections 6(a) and 6(b) are in effect, the government has contracted with a resettlement agency to provide assistance to the alien once he eventually arrives in the United States, and the alien has a qualifying bona fide relationship on this basis. Prior to the refugee’s arrival, however, the relationship is solely between the government and the agency, not between the agency and the refugee. Indeed, the agency typically has no contact with the refugee before his admission. Because the fact of an assurance does not itself create a relationship between a refugee and a resettlement agency, the government has not treated that fact alone as sufficient to trigger the injunctions. To do so (as the district court did) would render the refugee portion of this Court’s decision effectively meaningless.

Second, for aliens abroad who seek a visa, this Court similarly held that the suspension in Section 2(c) of the Order may not be enforced against an individual with a credible claim of a bona fide relationship to a U.S. person or entity, including “a close familial relationship” with a U.S. individual. IRAP, slip op. 12 (emphasis added). In interpreting what degree of closeness is required, the government looked to the waiver provision of Section 3(c)(iv) of the Order, which allows waivers for aliens who seek “to visit or reside with a close family member (e.g., a spouse, child, or parent)” in the United States. Order § 3(c)(iv). That waiver provision in turn reflected the provisions of the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., governing eligibility for family-based immigrant visas, which are limited to spouses, children, parents, and siblings. In light of related INA provisions and this Court’s stay decision, the government has further interpreted the phrase “close familial relationship” to include fiancé(e)s and parents- and children-in-law.

At respondents’ urging, however, the district court interpreted that phrase also to include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, and siblings-in-law. Again, that interpretation empties the Court’s decision of meaning, as it encompasses not just “close” family members, but virtually all family members. Treating all of these relationships as “close familial relationship[s]” reads the term “close” out of the Court’s decision. Moreover, by divorcing the Court’s language from its context — namely, the Order’s waiver provision and the immigration provisions on which it was based — the district court adopted an expansive definition untethered to relevant legislative enactments or Executive action.

The government explains why the Supreme Court needs to act now:

At this point, this Court’s intervention is both necessary and warranted. Only this Court can definitively settle whether the government’s reasonable implementation is consistent with this Court’s stay.

The government therefore respectfully submits this motion for clarification. In the alternative, the government has filed a notice of appeal, and this Court may grant a writ of certiorari before judgment, or even a writ of mandamus, and vacate the district court’s order insofar as that order granted respondents’ motion to modify the preliminary injunction. In the event that the Court would prefer the government to seek review first in the court of appeals, the government requests a stay pending such an appeal. In all events, the government respectfully requests a temporary administrative stay of the district court’s modified injunction pending this Court’s disposition of this motion. Disrupting the government’s implementation of the Order (which the district court’s order is already accomplishing) is entirely unnecessary; once the Court rules, the government can address any aliens who would have been affected in the interim.

What comes next?

In a perfect world, the single Justice responsible for the 9th Circuit (Kennedy), should immediately stay the Hawaii Order, pending further review by the full Court, either this summer or when the Supreme Court considers the full case on the merits in October. But more likely, Kennedy will refer the request to the full Supreme Court, giving Hawaii a chance to respond.

UPDATES:

Subsequent to our original post, the Supreme Court requested that the Hawaii has until 12 p.m. Tuesday to file its opposition.

The Trump administration also filed an appeal and motion for stay with the 9th Circuit (full embed at bottom of post)(pdf.).

The government’s substantive arguments are the same as made to the Supreme Court. It explained why it is filing in both places:

Because the parties’ disagreement turns on the meaning of the Supreme Court’s stay ruling, the government has moved in the Supreme Court for clarification of that ruling, and has sought a temporary administrative stay (copy attached, Add. 27-94). In order to protect the interests of the government and the public should the Supreme Court decline to rule pending this Court’s consideration of the matter, the government respectfully seeks a stay from this Court pending appeal or the Supreme Court’s disposition of the motion for clarification.

* * *

This Court should grant a stay pending appeal to permit the Supreme Court to rule on the government’s motion for clarification filed on July 14, 2017. As the government has explained to the Supreme Court, the district court’s modified injunction is based entirely on an interpretation of the Supreme Court’s June 26 stay decision. For that reason, the Supreme Court—rather than the district court or this Court—is the appropriate arbiter of the dispute concerning the meaning of its decision. To minimize the disruptive effect of the district court’s decision, the modified injunction should be stayed pending appeal and the Supreme Court’s
disposition of the pending clarification motion.

Although awkward to be in two places at once, it makes procedural sense. The nature of what the Hawaii court did in reinterpreting the Supreme Court ruling leaves the procedural path to review somewhat unclear. The government didn’t want to go one court and be told it should have gone to the other.

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Hawaii v Trump – Govt Motion to SCOTUS for Clarification and Stay of Hawaii Order by Legal Insurrection on Scribd

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Hawaii v Trump – Govt Motion to 9th Circuit for Stay of 2nd Hawaii Order by Legal Insurrection on Scribd