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SCOTUS WATCH: Hawaii files Opposition to Trump Motion for Clarification and Stay (Updated)

SCOTUS WATCH: Hawaii files Opposition to Trump Motion for Clarification and Stay (Updated)

Ruling from Supreme Court could come quickly on Trump request to halt Hawaii District Court Order scaling back of Travel Order No. 2

Hawaii just filed its Opposition (pdf.) to the Trump administration’s request for clarification of the Supreme Court’s prior ruling as to Travel Order No. 2, and to stay the Hawaii federal District Court’s Order significantly scaling back the Trump administration’s interpretation of the Supreme Court ruling.

A full copy of the Opposition papers is embedded at the bottom of this post.

We covered the issues in our prior post, Trump asks Supreme Court halt Hawaii Court ruling on Travel Order:

In the ongoing saga over the lower federal courts’ attempt to usurp presidential power over who may enter the country, the Trump administration late last night filed a request for the Supreme Court to review and to halt the Hawaii federal court order that dramatically scaled back Trump’s Travel Order No. 2.

As described in our post about the Hawaii Order, we noted that those exempted from the Order extend far beyond the “close familial” relations as described in the prior Supreme Court ruling which substantially overruled the Hawaii Court’s prior preliminary injunction. Those exempted, according to the Hawaii federal court, include:

“grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States”

While all of these categories expand what the Supreme Court ruled, the “cousins” exemption is particularly abusive. What degree of cousin? I have 2nd cousins I haven’t seen in decades – are they now my “close familial relations” under the Hawaii Order? What about more distant cousins? The Hawaii Order strips the Supreme Court ruling of almost all practical effect, and exempts entire extended families, some of which themselves may number in the hundreds of people.

In that post, we had an Update that the government also went to the 9th Circuit for a stay, in the event the Supreme Court ruled that the stay application should first go to the 9th Circuit.

There are no real surprises in the Opposition papers. Here are  the intro paragraphs:

The Government asks this Court for emergency relief that is procedurally improper and substantively unnecessary. It seeks to leapfrog its own pending motion and appeal in the Ninth Circuit and obtain an expansion of the stay this Court issued just three weeks ago. And it contends this extraordinary relief is appropriate because the District Court’s recent modification order has “eviscerated” this Court’s stay.

That is nonsense. The District Court faithfully applied this Court’s opinion, holding that “close relatives” like grandparents and nieces are permitted to enter, and recognizing that the charities, non-profits, and churches that have made a formal, contractual commitment to shelter and clothe refugees would suffer “concrete hardship” if those refugees are excluded. By the Government’s own account, the District Court’s order does not disturb the Government’s authority to enforce Executive Order 13,780 (“EO-2”) against more than 85% of refugees, or to exclude countless extended family members—second cousins, great aunts, and so forth—and other individuals who indisputably lack close relationships with American individuals and entities.

* * *

In the decision below, the District Court carefully applied that instruction, accepting some of Plaintiffs’ claims and rejecting others. In doing so, it protected American individuals and entities from the real harms that occur when a close relative is excluded from this country, or when a refugee family that a community has prepared to welcome is not permitted to enter after all.

There is no reason for this Court to take the extraordinary step of granting a stay, certiorari before judgment, or mandamus relief. The District Court’s opinion is correct. And, in any event, the Ninth Circuit—where the Government has filed an almost identical set of requests—is fully capable of fulfilling its normal role as the first line of appellate review. The Government’s motion should be denied.

Expect a Supreme Court ruling soon.

UPDATE: The government filed a Reply brief (pdf.), a full copy of which is embedded at the bottom of this post.


Hawaii v Trump – Opposition to Govt Motion to SCOTUS for Clarification and Stay of Hawaii Order by Legal Insurrection on Scribd


Hawaii v Trump – Reply in Support of Govt Motion to SCOTUS for Clarification and Stay of Hawaii Order by Legal Insurrection on Scribd


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I’m not a lawyer but wouldn’t this be like Hawaii arguing that SCOTUS has no authority in reviewing a lower court “clarification” of its ruling? What possible argument could they be offering?

    Ragspierre in reply to Pasadena Phil. | July 18, 2017 at 1:45 pm


    The DC arguement (though weak) is one anybody can read. It doesn’t seek to oppose the Supremes, but does seek to hide under their robes, so to speak, by subverting various cases and marshaling them to its cause.

It’s hard to look at that photo and realize that narcissitic, ignorant putz sotomayor is on our highest court alongside that warped fool, ginsburg.

rabid wombat | July 18, 2017 at 1:23 pm

Ripe for a bench slap….

Wait a second. From the AP today:

AP Diplomatic Writer
WASHINGTON (AP) – The State Department on Monday expanded its definition of “close family” to include grandparents and other relatives that constitute a bona fide U.S. relationship for visa applicants and refugees from six mainly Muslim nations.

In response to a Hawaii federal judge’s order last week, the department instructed U.S. diplomats to consider grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts and uncles, ?nephews and nieces and first cousins to meet the criteria for applicants from the six countries to receive a U.S. visa.

They had been omitted by the department after the Supreme Court partially upheld the Trump administration’s travel ban in June. Initially, it had included only parents, spouses, fiancés, children, adult sons or daughters, sons-in-law, daughters-in-law and siblings. Monday’s instructions change that.

“The ruling is effective immediately and we have issued instructions to our embassies and consulates to use the expanded definition when adjudicating visa cases,” the department said. Under the rules, applicants from the six countries – Syria, Sudan, Iran, Somalia, Libya and Yemen – have to prove a bona fide relationship with a person or entity, including a “close familial relationship” in the U.S. to be exempt from the ban.

    (Well, yesterday)

    alaskabob in reply to georgfelis. | July 18, 2017 at 2:18 pm

    With or without the White House’s knowledge and consent? Is the Trump Admin blinking or is Deep State now working in conjunction with the Hawaii courts and a functioning shadow government? Since we are all “related” why stop with aunts, uncles, cousins, distant relative, etc..etc..etc. Heck… since we are all in the same universe why not make allowances for the Greys and other real aliens in our midst?

    artichoke in reply to georgfelis. | July 18, 2017 at 6:42 pm

    This is why we need SCOTUS to rule quickly and slap down the Hawaiian district judge. Trump really is following every ruling to the letter (unlike Obama) and needs SCOTUS to control its own rogue inferior court.

So why is it fair that they can petition extended family, but my Filipina wife that her and I have followed the rules on her green card and citizenship, can not…….

    alaskabob in reply to starride. | July 18, 2017 at 3:04 pm

    Because you are not promising to bring down the country on your way to jihad. Your are not the Islamist candle the Leftist moths flit around. You are not dependent on them….

    Ragspierre in reply to starride. | July 18, 2017 at 4:49 pm

    OK. Let us at least TRY to use our brains…

    The EO BANS certain nationalities from applying…at all…for refugee status for a short period of time.

    That is CAN’T APPLY AT FLUCKING ALL. Period.

    DOES NOT prevent them from being vetted.

    DOES NOT allow them into the country.

    DOES NOT prejudice any other group of people, anywhere, at any time.

    What the District Court says is that there are more classes of exceptions than stated by the Supremes.

    And…like I said days ago…it ain’t no BFD, since there STILL are not that many people it applies to AND they will be vetted in any event…even long after they get here, if ever they do.

    They don’t get anything your Filipina wife does not get. In fact, a lot less.

      Ragspierre in reply to Ragspierre. | July 18, 2017 at 5:59 pm

      OK, haters of the down-thumb…what did I say that was incorrect?


        redc1c4 in reply to Ragspierre. | July 18, 2017 at 6:55 pm

        for one, the DC has NO authority to expand what SCOTUS has laid down as law.

          Ragspierre in reply to redc1c4. | July 18, 2017 at 7:15 pm

          This should be ease…

          QUOTE where I said, suggested, hinted, or implied they did have that authority.

          Jeeeeebus, you people…

          redc1c4 in reply to redc1c4. | July 18, 2017 at 8:48 pm

          “What the District Court says is that there are more classes of exceptions than stated by the Supremes.”

          /me hits “Staples” button

          “That was easy…”

          next up: shooting fish in a barrel and getting rid of cold beer around off duty GIs.

          Ragspierre in reply to redc1c4. | July 18, 2017 at 9:03 pm

          Yah, you poor dope, I DID report what the DC CLAIMED. I never said it was right, they had that authority, or anything you’ve FALSELY imputed.

          You’re just another liar. You had the chance to rectify your lie, and you just “stapled” it.

          Way to go…!!!

          Everything I said was true. Objectively. Without controversy.

      iconotastic in reply to Ragspierre. | July 18, 2017 at 8:26 pm

      I was under the impression that SCOTUS rewrote the EO to allow in refugees from the identified countries who had a ‘bona fide’ relationship with a US resident and that the Hawaiian DC judge expanded the definition of bona fide to include cousins, grandparents, and nieces/nephews. That is what I read in the motion introduction above.


      Malkiel_kol_hakavod_la_el in reply to Ragspierre. | July 18, 2017 at 10:37 pm

      “hinted, or implied”

      “And…like I said days ago…it ain’t no BFD, since there STILL are not that many people it applies to AND they will be vetted in any event…even long after they get here, if ever they do.

      They don’t get anything your Filipina wife does not get. In fact, a lot less.”

      The above “implies” the DC had the authority in the first place – when the Constitution only grants that power to the Congress and the Executive…

      Not the Courts…..

      It also “hints’ that SCOTUS and the DC are granted a power “authority” they are not granted….

      If this response is invalid in your mind – explain the point of your response that started this string…

Suggested SCOTUS response to Hawaii district court:

“What part of F*CK NO don’t you understand? F*CK…or NO?”

DaninMaryland | July 18, 2017 at 6:25 pm

Professor Jacobsen —

This is a little off topic but very important. The Anti-Defamation League today took a page out of the SPLC playbook and started branding numerous prominent Trump supporters as being part of an ’emerging hate movement’ with little justification. Folks like Mike Cernovich, Lucian Wintrich, Jack Posobiec, Gavin McInnes and Milo Yiannopoulos, who do not lead any hate groups but who are prominent Trump supporters on new media, are being branded as extremists. Certainly none have ever embraced anti-Semitism and Wintrich is Jewish while Yiannopoulos is part Jewish. Both are gay. Cernovich and McInnes are themselves in interracial marriages with interracial children.

Some on the new list may be justified but many others are listed with no basis other than that they are Trump supporters and influential conservatives. I have followed the above names for quite some time and have seen no evidence of racial extremism, advocacy of violence or anything else that would justify such an attack by the ADL.

Push back against these extreme tactics by ADL is crucial. The ADL is now moving far outside of the mainstream in its broad attacks on conservatives. The ADL’s reputation is being severely damaged as conservatives are attacked broadly. The folks named above are no more extreme than president Trump, and that is probably the point.

Perhaps the era when the ADL was an honorable organization are already in the past? That would be a great shame.

    artichoke in reply to DaninMaryland. | July 18, 2017 at 6:45 pm

    I think it’s been a long time since SPLC were honorable, decades. If this destroys what is left of their reputation, it will be for good.

      DaninMaryland in reply to artichoke. | July 18, 2017 at 10:42 pm

      I am not talking about SPLC. I am talking about ADL. The Anti-Defamation League is now acting like the SPLC, or even worse. They are, totally without basis, naming many major figures on conservative social media as “hate” leaders. Folks like Cernovich, Wintrich, Posobiec, McInnis and Yiannopoulos are being grouped with the proprietor of the Stormfront website.

      I sure hope Professor Jacobson will speak out. The idea seems to be to personally attack all prominent Trump supporters.

    The ADL has sadly become like PETA: a tool used by leftists while hiding behind a good cause.

    Kind of like how lottery-winner and boy-socialist zuckerberg has used Facebook.