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Hawaii Judge Grants Post-SCOTUS Injunction As To How Trump Travel Order Applies

Hawaii Judge Grants Post-SCOTUS Injunction As To How Trump Travel Order Applies

“grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins” excluded from Travel Order bar to entry

A federal judge in Hawaii has just granted in part, and denied in part, the State of Hawaii’s motion to enforce an injunction issued prior to the Supreme Court ruling as to Trump’s Travel Order No. 2. The key issue was who would be considered to have a “bona fide” connection to the United States under the Supreme Court ruling, such that they would be excluded from Travel Order No. 2 restrictions on entry.

A full copy of the Order is embedded at the bottom of this post. (pdf.)

For background, see this prior post, Twice rejected, Hawaii goes to court AGAIN to halt Trump Travel Order implementation

Here’s the intro by the Judge:

Upon careful consideration of the parties’ expedited submissions, the Court concludes that on the record before it, Plaintiffs have met their burden of establishing that the requested injunctive relief is necessary to preserve the status quo pending appeal regarding the definition of “close familial relationship” employed by the Government with respect to Sections 2(c), 6(a) and 6(b) of EO-2. Plaintiffs have similarly met their burden with respect to refugees with a formal assurance, as it relates to the Government’s implementation of Sections 6(a) and 6(b) of EO-2, and participants in the Lautenberg Program. Plaintiffs’ Motion is accordingly GRANTED in these respects and DENIED to the extent other relief is sought, for the reasons detailed below.

Here’s the relief:


It is hereby ADJUDGED, ORDERED, and DECREED that:

Defendants JOHN F. KELLY, in his official capacity as Secretary of Homeland Security; REX W. TILLERSON, in his official capacity as Secretary of State; and all their respective officers, agents, servants, employees, and attorneys, and persons in active concert or participation with them, are hereby enjoined from enforcing or implementing Sections 2 and 6 of Executive Order No. 13,780 across the Nation—except for those portions of Sections 2 and 6 providing for internal review procedures that do not burden individuals outside of the executive branch of the federal government. Enforcement of the enjoined provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court.

Defendants JOHN F. KELLY, in his official capacity as Secretary of Homeland Security; REX W. TILLERSON, in his official capacity as Secretary of State; and all their respective officers, agents, servants, employees, and attorneys, and persons in active concert or participation with them are enjoined fully from the following:

1. Applying section 2(c), 6(a) and 6(b) of Executive Order 13,780 to exclude grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.
2. Applying Section 6(a) and 6(b) of Executive Order 13,780 to exclude refugees who: (i) have a formal assurance from an agency within the United States that the agency will provide, or ensure the provision of, reception and placement services to that refugee; or (ii) are in the U.S. Refugee Admissions Program through the Lautenberg Program.

This is another horribly wrong lower court decision. For the reasons stated in my post  Hawaii seeks injunction against Trump admin interpretation of SCOTUS Travel Order ruling, the Trump administration application as to certain relatives was consistent with the Supreme Court decision. This is another case of the lower court substituting its policy judgments.

And it proves the three dissenters in the Supreme Court, who wanted the Travel Order upheld in its entirety, to have been correct as to the mischief that would ensue:

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.

Don’t expect any relief in the 9th Circuit, which practically invited the Hawaii court to do what it did.

This case is back in the Supreme Court in October on the full merits. The question is, will it be back before the Supreme Court on an emergency request to once again remedy lower court excess before then.

According to Prof. Josh Blackman, the Solicitor General intends to bypass the 9th Circuit and go directly to the Supreme Court:

[This post was updated multiple times]


Hawaii v Trump – Post-SCOTUS Order Granting in Part Motion to Enforce Injunction by Legal Insurrection on Scribd


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Guy’s a real masochist.


I wasn’t expecting that.

Any predictions on how the 9th Circuit and Supreme Court will react?

    Tom Servo in reply to clintack. | July 14, 2017 at 1:40 am

    I was expecting it, and you should have been. The 9th Circuit gave him the high sign in that last opinion they wrote, telling him point blank “Hey, if you do it this way, you got a free pass from us!!”

    Which is why it is GUARANTEED to sail through the 9th Circus.

    Which is why the Solicitor is taking it straight to the Supremes.

    The Hawaii District Courts and the 9th Circuit are now fully functional arms of the left wing of the Democrat Party. You should expect that to be obvious in every decision they make from this point forward.

      redc1c4 in reply to Tom Servo. | July 14, 2017 at 4:28 am

      where have you been?

      it’s been obvious for the last couple of decades…

      clintack in reply to Tom Servo. | July 14, 2017 at 7:00 am

      You’re probably right. I was just so pleasantly surprised when the courts slapped down the prosecutors before.

      I was expecting something like this — but this order feels much more sweeping than I was expecting. I thought they’d nibble at the edges a bit.

      I even — naive fellow that I am — thought they’d try to actually find a grandfather or brother-in-law or something and use that one case to establish standing and chip away at the ban one specific case at a time.

      I suppose I’m not so much surprised as disappointed.

Ok…now all they have to do is prove their relationship beyond a reasonable doubt, right?

Good luck with that!

Predictable. The 9th gave the district court cover to indulge in another political decision, which the court took advantage of. However, this does not change the fact that the district courts referral to the SCOTUS was correct and this one is wrong.

The biggest problem with this decision is that no evidence was presented that would indicate that any of the named plaintiffs would suffer ANY harm by petitioning the SCOTUS for clarification of the language used in ITS order. However, blocking the EO can very possibly result in damage to others in the US. So, to honor the status quo, the court should have refused to “clarify” the terms used by the SCOTUS and referred the plaintiffs to the SCOTUS for such clarification.

Now, to see what incredible arguments the 9th will use to uphold this stupidity.

    Gremlin1974 in reply to Mac45. | July 14, 2017 at 11:09 am

    Mac45 I think I read somewhere that the SG was going to skip the 9th and go directly to SCOTUS. I mean hell this judge himself said he knew he couldn’t “clarify” a SCOTUS order, the 9th is the reason he tried so probably a good idea to skip them if you can.

    What will be interesting is SCOTUS’s reaction, they typically don’t take well to lower court judges putting words in their mouths.

He is nuts. He is going for the glory. He is not a judge. Law means nothing to him, his politics everything.

Not unexpected.

I’m not surprised that they are going directly to SCOTUS, but how effective will that be. IIRC it was the last thing they announced before going into recess ( or whatever they call it ).
How likely are they to act quickly?

Maybe they will round them up and get them back in the office for the 10 minutes needed to shoot this order down?

Or maybe they just enforce the law and ignore the courts [mis]direction?

    clintack in reply to mailman. | July 14, 2017 at 9:31 am

    What are the procedures on this?

    Can five justices get together on a conference call and agree to issue a stay of this ruling?

    It seems like there would be no need for any kind of hearing or briefs at all — it’s entirely about “clarifying” the stay they issued.

      Gremlin1974 in reply to clintack. | July 14, 2017 at 11:12 am

      I don’t think there “recesse” is like a vacation, SCOTUS is still working just not in the courtroom, I believe. So they could issue a stay or correction.

      What I would like to see is them offer a clarification and have it comport with exactly what the administration has said.

if only the GOP controlled the Senate: we could impeach these scum in wholesale lots, and let PDT appoint judges who follow the law in their stead.

i mean, really, “unnecessary stupidity” ought to be sufficient grounds for removal from the bench…

    Milhouse in reply to redc1c4. | July 14, 2017 at 6:37 am

    Hey dumb-bell, how many senators does it take to convict on an impeachment?

    clintack in reply to redc1c4. | July 14, 2017 at 9:33 am

    I expect we’ll pick up several Senate seats next year — but not nearly enough for that.

      MSO in reply to clintack. | July 14, 2017 at 2:49 pm

      With the quick and complete repeal of Obamacare, the funding of the wall, the rapid confirmation of Presidential appointees and the magnificent tax reforms, the GOP should be well rewarded next election.

The Supreme Court made a bad decision. The entire travel ban should have been upheld. Obviously the Court wanted a unanimous decision, so there was a compromise. If they rule on the latest fiasco either they will uphold the Administration’s interpretation or allow the entire ban to go into effect because with liberal activist federal judges no law is safe and you can’t give them wiggle room.

I read somewhere that Hawaii has a grand total of three people in the entire state that could potentially be affected by this travel ban. Is that correct? IF so, then this is not only the tail wagging the dog, but being done so purely for the purpose of undermining the courts.
Given everything going on with this decision, the obvious mischief making by this judge, and the pure politicization of this ruling, could this be grounds for impeachment or removal from office using some other mechanism for this judge?

    Milhouse in reply to Cleetus. | July 14, 2017 at 6:45 am

    I read somewhere that Hawaii has a grand total of three people in the entire state that could potentially be affected by this travel ban. Is that correct?

    That is so obviously incorrect that you must have read it on some parody site. How could you even imagine it could be correct? In an entire state, no matter how small, how could there be only three people with a grandparent, grandchild, sibling-in-law, aunt, uncle, nibling, or cousin in any given country, let alone six of them?

Paul In Sweden | July 14, 2017 at 6:16 am

It is time for the Administration to cut all budgets that process visas. Fewer resources could mean a lag of 6-18 months in processing visa applications.

Okay… mostly unrelated, but this came up when I was trying to google rough numbers of affected people in Hawaii…

Apparently, Iran held a Trump cartoon contest last week. I suppose they think that we worship our Great Leader the way they do, and this is supposed to show us how horrible and offensive that Mohammed cartoon contest in Texas was. Or something.

I cannot begin to express how awesome it would be if President Trump were to retweet his favorite of the Iranian cartoons mocking him.

He could show confidence and humor; model the correct reaction to mockery (i.e. not rioting or massacring cartoonists); and it would put the retweeting of the silly wrestling meme in its proper perspective.

DINORightMarie | July 14, 2017 at 7:09 am

The big question now is: what will SCOTUS do?

This is a direct challenge to their position as SUPREME Court.

Will they allow this law be the end of their ability to even pretend to be the highest court in the land?

All Human Beings are cousins if one goes back far enough, thus nullifying the entire EO.

    artichoke in reply to DrJim77. | July 16, 2017 at 9:46 am

    The original travel ban didn’t have this problem. SCOTUS put in the exception for close family relations, and three justices saw this problem a mile away.

    Just permit Trump’s travel ban in full, immediately, until the case is heard in October.

Bucky Barkingham | July 14, 2017 at 7:43 am

Congress could enact legislation removing immigration matters from the jurisdiction of courts below SCOTUS, but that would require the Roll-Over Party to do something to support Trump and also to upset their LibDem leash holders.

Bitterlyclinging | July 14, 2017 at 8:28 am

Funny the judge didn’t include anyone feeling a need to complete their religious obligations regarding infidels in that order. Perhaps that’s coming a tad later.

The practical effect of this will be limited. The subject people are not given a “free pass” into the U.S. They are just not automatically blocked. They still have to pass through a vetting process, and that process can continue even when they’re here…if ever they are allowed in.

The Administration should be working NOW on a very durable “permanent” EO setting out some hard, effective vetting criteria that should apply everywhere except favored nations. Then we need to assure that we have people in the field and here at home to do the vetting, using the very best tools we can devise.

That would have the effect of mooting the current controversy over the EO.

The Supremes MIGHT be inclined to take the case up just to nail down some of the issues raised.

Since the Trump administration already has a SCOTUS order, why wouldn’t they simply ignore this trash?

If it wasn’t for the fact that the courts are equal, I would *love* to see an injunction put out by the DC district court preventing the 9th/Hawaii from modifying, changing, altering or (censoring) in any way the travel order.

Dear Ninth Circuit,
Don’t make us come back there, because we’ll stop this car, right here.

Justice Thomas called it exactly right in his dissent. These leftist hacks are so pathetically predictable.

There may be one good thing about the never-quit-trying tactics of these lefty hack-tivist judges: if they keep this sh*t up, and obviously they intend to, even the liberal loons on the SCOTUS may eventually see the perils of allowing individual federal court judges to be crafting federal immigration policies from their benches.

Trump should just declare that immigration is coming to a full stop immediately. Apparently, our courts are completely incapable of handling anything more complicated. No more immigration until further notice. Do it now.

The reality is that this Judge decided that the State of Hawaii (not the DHS) has the constitutional authority to determine what the definition of “bona fide relationship” is.

Hey, my young friend Mohamed in Cairo would be thrilled to see this. He had cousins living in Kansas City but couldn’t get a visa because he’s only a cousin. Now, the Hawaii judge changed all that! Hamdulillah! (This was sarcasm.)

    Ragspierre in reply to tarheelkate. | July 14, 2017 at 9:54 pm

    It was also factually vapid.

    Egypt is not a country targeted by the EO. Hence, there’s no bar to an application. At all. Period.

Any possibility SCOTUS could conclude that the vague language in its prior ruling is unworkable and just permit the Travel Ban without restriction?

That would have the nice effect of showing this pesky District Judge how our government works and who does what. Clue: he’s neither SCOTUS nor President.

It takes 2/3 of both houses of Congress to override a President.
And it takes one federal judge anywhere to override a President.
Yes, of course, that’s exactly how it’s supposed to work.
When there’s a Republican in the White House.

Nothing much good ever came out of Hawaii.

Congress could, and should, amend the Judiciary Act to prevent federal judges at their level from reviewing constitutionality. That should only occur at the Court of Appeals level and above. Further, the power of a single federal district judge to issue nation wide injunctions should be severely limited. The Judiciary Act sets the parameters of federal judge’s scope of authority. As for the Ninth Circuit Court of Appeals, it should be broken up into two circuits and enough new judges appointed to each of the resulting circuits to redress the balance on that unbalanced (in more than one sense) court.

Trump should just ban all immigration until such time that the risk no longer exists!

No racism or religious persecution! Ban it all….

Who wants to bet how long it takes some other court to do the same thing?

I give it until the end of the week! TGIF