Image 01 Image 03

Judge Denies Hawaii request to halt Trump admin interpretation of SCOTUS Travel Order ruling

Judge Denies Hawaii request to halt Trump admin interpretation of SCOTUS Travel Order ruling

“This Court declines to usurp the prerogative of the Supreme Court to interpret its own order”

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


Donations tax deductible
to the full extent allowed by law.


What I find to be the most interesting aspect of this story is that clearly, the lower courts have understood the Great Big Hint the Supreme Court gave them in their ruling.

BrokeGopher | July 7, 2017 at 12:02 am

Is that the same federal judge who granted the injunction in the first place?

    clintack in reply to BrokeGopher. | July 7, 2017 at 12:11 am

    Yep. Same judge. Even he wouldn’t bite on this one.

    The Hawaii AG was just grandstanding for the voters.

    Jackie in reply to BrokeGopher. | July 7, 2017 at 5:30 am

    Same Judge. These guys have huge egos. Getting slapped down 9 to nothing has to be embarrassing. He probably doesn’t want it to happen again. The Court overturned his decision because the enemies of the travel ban are likely to lose when the case is heard.

      Olinser in reply to Jackie. | July 7, 2017 at 6:09 am

      Yeah 9-0 with radicals like Kagan and Ginsberg on the court is ridiculous.

      I’ve actually always felt that if any judge were overruled by a 9-0 Supreme Court ruling they should automatically be removed and barred from ever being a judge.

        Old0311 in reply to Olinser. | July 7, 2017 at 9:31 am

        Unless they possess a firm understanding of what a perfect chicken looks like and can be trusted to pick the correct hen at the fair.

… 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

If the Travel Order is lawful, the problem with any “finessing” any court tries to impose is not that it generates more litigation, but that it’s a usurpation of an executive function which has already been acknowledged to be lawful. That is, there is nothing for a court to add; the Executive function has been satisfied by the Executive, and no amateur dabbling by judges is either necessary or legally justified.

Any number of people would like to be President, but only one was actually elected.

this Federal Judges was likely privately counseled on what it would mean to his (to be shortened) career if a Federal Judge directly disputes the SCotUS…

    thalesofmiletus in reply to mathewsjw. | July 7, 2017 at 1:45 am

    Pretty sure a sitting judge would know better since law school, and it seems that he did!

    randian in reply to mathewsjw. | July 7, 2017 at 2:11 am

    How could it shorten his career? I thought judges could only be removed by impeachment, not even SCOTUS can remove a judge no matter how outrageous his rulings.

I would have suggested that all refugees be sent to Hawaii but the only problem with that is the unintended impact that would have on native Hawaiians. Liberals would be five in their walled off enclosures though.

    DaveGinOly in reply to mailman. | July 7, 2017 at 2:36 am

    Put too many refugees on one of the islands and it might tip over.

      Old0311 in reply to DaveGinOly. | July 7, 2017 at 9:50 am

      That science is settled! Look what almost happened to Guam. The last time the 3rd Marine Division was there they were not made to feel welcome and who knows if they hold a grudge. They might tip the island over the first time they get liberty just for fun.

      Send the refugees to Hawaii and tell me one more time why it is bad that Hawaii is within range of the Norks. Never mind, I remember the macadamia nuts now.

    rdm in reply to mailman. | July 7, 2017 at 6:02 am

    Those native Hawaiians voted for Obama. Why should they not suffer the blowback of his policies that they voted for?

I was in Milwaukee last fall. Took a cab. The cab driver was from Somalia. H told me he didn’t want Trump as president because he would block his 16 year old son from coming to the states. I asked him why he didn’t come now while Obama was still president. He said “He can’t. He’s still in prison for dealing drugs.” What kind of drugs do you have to be dealing to go to prison in Somalia? . . .

Confronting a unanimous Supreme Court is still a bridge too far for even the most progressive of jurists. The Attorney General of Hawaii should be personally sanctioned for this frivolous pleading.

    legalbeagle in reply to countrylaw. | July 7, 2017 at 11:07 am

    The District Court granted the movants leave to file their motion with the United States Supreme Court. It will take a special kind of foolishness to sign your name to a pleading before the Supreme Court whose premise is that a unanimous order of that Court is unclear and needs clarification.

Yep. Toldja…

The judge made the correct decision here. The SCOTUS had set the limits of the existing injunction and has set a hearing on the issues involved. The Executive branch issued a detailed definition based upon the ruling from the SCOTUS. If any party to the action wishes clarification of the SCOTUS ruling, then the proper venue for that is the court issuing the ruling, the SCOTUS.

Now, using the rule of legal BS, we see that this decision only required 6 pages. This would tend to indicate that the decision arrived at was based upon solid legal foundation and common sense.