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