The State of Hawaii sought an emergency ruling from the Hawaii federal judge whose original injunction against Trump Travel Order No. 2 was mostly overturned by the Supreme Court.

We covered the emergency request in our post, Hawaii seeks injunction against Trump admin interpretation of SCOTUS Travel Order ruling. The main issue was how the Trump administration was applying the test the Supreme Court established for who would be exempt from the blanket country-wide prohibition on visa entry.

The Supreme Court reinstated substantially all of Trump’s Travel Order No. 2, but 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.

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, for the reasons set forth in my prior post.

Hawaii, however, contended that it needed a “clarification” of who met the test, with Hawaii arguing that additional categories of persons, such as grandparents, should have been included.

The Judge has just issued an Order (pdf.)(full embed at bottom of post) denying the request.

Basically, the District Court punted to the Supreme Court, telling Hawaii that if Hawaii sought clarification of a Supreme Court ruling, it should seek that clarification from the Supreme Court, the issuing court:

Upon careful consideration of the parties’ submissions, it is evident that the parties quarrel over the meaning and intent of words and phrases authored not by this Court, but by the Supreme Court in its June 26, 2017 per curiam decision. That is, the parties’ disagreements derive neither from this Court’s temporary restraining order, this Court’s preliminary injunction, nor this Court’s amended preliminary injunction,2 but from the modifications to this Court’s injunction ordered by the Supreme Court. Accordingly, the clarification to the modifications that the parties seek should be more appropriately sought in the Supreme Court.3

* * *

Because Plaintiffs seek clarification of the June 26, 2017 injunction modifications authored by the Supreme Court, clarification should be sought there, not here. This Court will not upset the Supreme Court’s careful balancing and “equitable judgment” brought to bear when “tailor[ing] a stay” in this matter. Slip Op. at 10. Nor would this district court presume to substitute its own understanding of the stay for that of the originating Court’s “exercise of discretion and judgment” in “[c]rafting a preliminary injunction . . . dependent as much on the equities of a given case as the substance of the legal issues it presents.” Slip Op. at 9. This
Court declines to usurp the prerogative of the Supreme Court to interpret its own order and defers in the first instance.

So will Hawaii go back to the Supreme Court for a clarification?

That would seem to be an extreme long shot. Three justices (Thomas, Alito, Gorsuch) wanted to go further, and uphold the Travel Order in its entirety, arguing 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.

If Hawaii were to try to go back to the Supreme Court, it essentially would be proving the three dissenters were correct. I can’t imagine that the Supreme Court would want to revisit this case before the scheduled October hearing.

[This post has been updated multiple times]


Order Denying Hawaii Post-SCOTUS Motion to Halt Trump Travel Order No. 2 by Legal Insurrection on Scribd


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