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Hawaii seeks injunction against Trump admin interpretation of SCOTUS Travel Order ruling

Hawaii seeks injunction against Trump admin interpretation of SCOTUS Travel Order ruling

Just as predicted, more litigation, this time an “Emergency Motion to Clarify” the District Court’s prior injunction.

When the Supreme Court reinstated substantially all of Trump’s Travel Order No. 2, the Supreme Court carved out an exception for people who have a “bona fide” relationship to the U.S. Such persons could not be subjected to a blanket, country-wide prohibition from entering the U.S. (emphasis added):

We accordingly grant the Government’s stay applications in part and narrow the scope of the injunctions as to §2(c). The injunctions remain in place only with respect to parties similarly situated to Doe, Dr. Elshikh, and Hawaii. In practical terms, this means that §2(c) may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2….

The Government’s application to stay the injunction with respect to §§6(a) and (b) is accordingly granted in part. Section 6(a) may not be enforced against an individual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States. Nor may §6(b); that is, such a person may not be excluded pursuant to §6(b), even if the 50,000-
person cap has been reached or exceeded. As applied to all other individuals, the provisions may take effect.

Section 2(c) applies to the general bar to entry into the country via visas, while Section 6(a) is the temporary halt in refugee entry. For §2(c), the Travel Order continued except as to “parties similarly situated to Doe, Dr. Elshikh, and Hawaii.” “John Doe” was “a lawful permanent resident whose Iranian wife is seeking entry tothe United States.” Dr. Elshikh is “an American citizen and imam whose Syrian mother-in-law is seeking entry to this country.” Hawaii’s alleged interest was in students attending university in Hawaii. So, according to the Supreme Court, §2(c) continues as to persons whose spouse or mother-in-law are seeking admission, or for students enrolled in university in Hawaii. For refugees under §6(a) the Supreme Court used looser language, “a refugee who can credibly claim a bona fide relationship with a person or entity in the United States,” though there is no limiting language as for §2(c).

Three justices (Thomas, Alito, Gorsuch) wanted to go further, and uphold the Travel Order in its entirety.

Part of their reasoning was that since the Travel Order was lawful, trying to parse what constitutes a “bona fide” relationship to the U.S. would generate just more litigation:

I agree with the Court that the preliminary injunctions entered in these cases should be stayed, although I would stay them in full….

Moreover, I fear that the Court’s remedy will prove unworkable. Today’s compromise will burden executive officials with the task of deciding—on peril of contempt— whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country. See ante, at 11–12. The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a “bona fide relationship,” who precisely has a “credible claim” to that relationship, and whether the claimed relationship was formed “simply to avoid §2(c)” of Executive Order No. 13780, ante, at 11, 12. And litigation of the factual and legal issues that are likely to arise will presumably be directed to the two District Courts whose initial orders in these cases this Court has now— unanimously—found sufficiently questionable to be stayed as to the vast majority of the people potentially affected.

That fear is becoming real. The Trump administration issued a new rule, in light of the Supreme Court ruling, defining “bona fide” relationships as:

Parents, spouses, children, siblings, fiancés and sons- or daughters-in-law are approved relationships.

Grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, sisters-in-law and other extended family are not accepted as “close family.”

This would appear to be consistent with the Supreme Court ruling, at least as to non-refugee visa entries, considering the language in the Supreme Court Order, “The injunctions remain in place only with respect to parties similarly situated to Doe, Dr. Elshikh, and Hawaii.”

That’s not good enough for one of the litigants, the State of Hawaii, which is suing to expand the definition by means of an Emergency Motion to Clarify, as AP reports, Hawaii challenges family rules on travel ban:

Hawaii filed a court challenge today to the Trump administration’s limitations on the family relationships that people from six mostly Muslim countries need to claim to avoid a travel ban.

The U.S. Supreme Court on Monday exempted people from the ban if they can prove a “bona fide” relationship with a U.S. citizen or entity. The Trump administration had said the exemption would apply to citizens of Syria, Sudan, Somalia, Libya, Iran and Yemen with a parent, spouse, child, adult son or daughter, son-in-law, daughter-in-law or sibling already in the U.S. The administration late today apparently also added fiance to the list of “bona fide” relationships.

Hawaii filed an emergency motion today asking a federal judge to clarify that the administration cannot enforce the ban against fiances or relatives not defined by the administration guidelines.

The Emergency Motion (pdf.), supporting Declaration (pdf.), and Memorandum of Law (pdf.)  are embedded in full at the bottom of this post.

It appears that at least as to visa entries, Hawaii is trying to expand the limiting language (quoted above) as to who is exempt from the Travel Order:

Second, all of the relationships the Government has deemed nonqualifying—grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, sisters-in-law, and fiancés—are “close familial relationships” within the meaning of the Court’s order. Each of these relationships is comparable to (if not closer than) the relationship between Dr. Elshikh and his mother-in-law. They too are within two degrees of consanguinity: i.e., the immediate relative of someone in the person’s nuclear family. A brother-in-law, for instance, is the brother of a U.S. person’s spouse; there is no reason in logic or law why that person is a more distant family member than the mother of a person’s spouse. Likewise, it is inconceivable that a person would claim that he suffers a lesser burden if his grandchildren are excluded from the country than if his mother-in-law is.” [Hawaii memo at 8-9]

The court is likely to rule at the end of next week, given the briefing schedule. The Court entered the following docket entry:

06/29/2017 295 EO: The Court partially lifts the April 3, 2017 stay in this matter for the limited purpose of considering Plaintiffs’ Emergency Motion to Clarify Scope of Preliminary Injunction. Dkt. No. 293 . Defendants shall file their opposition, limited to 20 pages, by Monday, July 3, 2017. Plaintiffs shall file any reply, limited to 15 pages, by Thursday, July 6, 2017. IT IS SO ORDERED. (JUDGE DERRICK K. WATSON)(watson1)

[This post has been updated multiple times]


Hawaii v Trump – Motion to Clarify Injunction Post-Supreme Ct and Supporting Memorandum by Legal Insurrection on Scribd

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Hawaii v Trump – Declaration for Emergency Post-Supreme Ct Relief by Legal Insurrection on Scribd

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Hawaii v Trump – Memo of Law in Support of Motion for Emergency Post-Supreme Ct Relief by Legal Insurrection on Scribd

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Comments

I should dub the judicial resistance strategy the ‘Lilliputian Strategy’

You know… I really think we should stop being angry about this and just laugh.

Even with their federal judges willing to put the personal over principles and an army of unifireable bureaucrats… they are reduced to pitched battles over whether or not grandparents count.

The Attorney General of Hawaii is grandstanding.

This odd attempt at clarification is a bald faced attempt to ask a District Court to usurp the power of the United States Supreme Court. The Supreme Court granted certiorari. The District Court should not take any further action in this case until the Supreme Court has ruled. If the Supreme Court wants to clarify it can clarify.

Individuals with claims may raise them in a separate legal proceeding. It is not for the State of Hawaii to seek clarification.

    iconotastic in reply to countrylaw. | June 30, 2017 at 4:09 pm

    What will happen in the courts if Hawaii finds a federal judge, such as Obama’s friend, who decides to issue another injunction based on this motion? Can the administration ignore the further injunction or must the ban be halted yet again?

      countrylaw in reply to iconotastic. | June 30, 2017 at 6:14 pm

      There is precedent given the grant of certiorari, (dating back to President Nixon during Watergate) for the Government to assert that a nationwide District Court injunction is non-binding until the Supreme Court rules on its merits. Such an assertion is more a political, rather than legal assertion. But at the same time, the District Court rulings are more political rather than legal rulings.

    clerk in reply to countrylaw. | July 1, 2017 at 9:41 am

    It is presumptuous for a United States District Court to try to review (on a national basis) what is for all practical purposes a preliminary injunction issued by the United States Supreme Court. The Supreme Courts words speak for itself.

    The Supreme Court did not remand the cases back to the District Courts. The implication is clear from the ruling.Although not explicitly stated the Supreme Court believes the District Courts will stand down until the Supreme Court completes its review.

    The Supreme Court wrote:

    To begin, we grant both of the Government’s petitions for certiorari and consolidate the cases for argument.

    ….
    The Government’s application to stay the injunctionwith respect to §§6(a) and (b) is accordingly granted in part. Section 6(a) may not be enforced against an individual seeking admission as a refugee who can credibly claima bona fide relationship with a person or entity in the United States. Nor may §6(b); that is, such a person may not be excluded pursuant to §6(b), even if the 50,000 person cap has been reached or exceeded. As applied to all other individuals, the provisions may take effect.

So if they are challenging the definition of close relationships, does that mean that until that case is resolved no one from the listed restricted countries can get in? The rest of the previous ruling on the EO stands…? Your thoughts Professor?

Since gay marriage is now legal, every terrorist will be a fiancé.

They will never stop.

    TX-rifraph in reply to Exiliado. | June 30, 2017 at 12:07 pm

    Two of Alinsky’s rules:

    — Keep the pressure on. Never let up.

    — The major premise for tactics is the development of operations that will maintain a constant pressure upon the opposition.

    notamemberofanyorganizedpolicital in reply to Exiliado. | June 30, 2017 at 3:07 pm

    They will stop soon.

    Lots sooner than anyone expects.

Trump’s next response should be to halt ALL immigration. This is a disaster that needs to be brought under control. Period. We need to fix the leaky roof BEFORE we remodel the kitchen.

We should halt all immigration!

No reference to race, religion or any other fact that could be used to interfere with safely executing the lawful duties of the President to protect the citizens!

Technically, as this case is before the SCOTUS and the State of Hawaii is requesting a judicial clarification of language written by the SCOTUS, the district court no longer has any jurisdiction in the matter. The DC should refer Hawaii to the SCOTUS for clarification. It will be interesting to see if the DC goes rogue here and issues a “clarification” on its own.

The SCOTUS already admonished the lower court and said Hawaii could not stand in for a theoretical plaintiff. That should have ended the matter.

Bucky Barkingham | June 30, 2017 at 2:12 pm

Any guesses which way the “Resistance” Hawaii Court and the “Resistance” 9th Circus Court will rule?

The only question I see here is:”Will the SCOTUS b*tch-slap or p*mp-slap the Hawaii judge?”

They really need a one-line ruling: “Any’bona fide relationship’ with regard to this order will be defined by the US State Department.”

Whack! Right across the face.

All Muslims should be routed to Hawaii.

Let them reap what they sow…

Large online advertisement and in Hawaii newspapers: Hawaii to accept all new refugees from seven countries involved in current ban. Name the politicians and judicial officials involved.

I wonder if China would be interested in acquiring Hawaii? It’s already a crap hole with brush.

What’s with the orange picture, Professor?

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