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