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Supreme Court stays Hawaii Order as to refugees, not as to relatives

Supreme Court stays Hawaii Order as to refugees, not as to relatives

Will wait for 9th Circuit to rule on full stay motion and appeal from Hawaii Order scaling back implementation of Trump Travel Order No. 2

The Supreme Court has ruled on the Trump administration’s Motion for Clarification and for a Stay of the Hawaii Order significantly scaling back implementation of Travel Order No. 2.

The Court denied the request for “clarification,” granted a stay of the Hawaii Order on refugees, and was silent (de facto denial) of a stay as to relatives:

The Government’s motion seeking clarification of our order of June 26, 2017, is denied. The District Court order modifying the preliminary injunction with respect to refugees covered by a formal assurance is stayed pending resolution of the Government’s appeal to the Court of Appeals for the Ninth Circuit.

Justice Thomas, Justice Alito, and Justice Gorsuch would have stayed the District Court order in its entirety.

We covered the issues in these posts:

The short version is that after the Supreme Court substantially overruled the first Hawaii District Court and 9th Circuit injunctions against Travel Order No. 2, the Trump administration implemented new rules following the Supreme Court ruling. Most prominently, the Trump administration limited “close familial relations” (who would be exempted from the Travel Order under the Supreme Court ruling) to Parents, spouses, children, siblings, fiancés and sons- or daughters-in-law.

The Hawaii District Court, however, issued a second preliminary injunction expanding who was exempted to “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States”. The Hawaii court also ruled that mere contact between a refugee and a private U.S. refugee agency was sufficient in and of itself to constitute a bona fide connection to the U.S. so as to exempt such refugees from the Travel Order.

In the original Supreme Court ruling, the three dissenters (Thomas, Alito, Gorsuch) wanted the entire Travel Order upheld (the Hawaii injunction stayed in its entirety) and warned that there would be further litigation if that did not happen:

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.

That prediction proved prescient, as the case came back to the Supreme Court. The government sought Supreme Court intervention as to the second Hawaii injunction, arguing that these expansive categories ordered by the Hawaii court were contrary to the Supreme Court’s ruling and rendered the ruling language devoid of meaning. Here’s how the government laid out its case (emphasis added):

In two important respects, however, respondents pressed further in an effort to strip this Court’s stay of significant practical consequence. The district court adopted both of respondents’ arguments, and denied the government’s request for a stay pending
this Court’s review. The government therefore is left to seek this Court’s immediate intervention.

First, for aliens abroad who seek admission as refugees, this Court held that the suspension in Section 6(a) of the Order and the annual cap in Section 6(b) “may not be enforced against an individual * * * who can credibly claim a bona fide relationship with a person or entity in the United States.” IRAP, slip op. 13. Respondents do not contend that the government has applied Sections 6(a) and 6(b) to refugees who themselves have developed actual, bona fide relationships with U.S. entities. Rather, respondents object that, for every refugee who is likely to enter the United States while Sections 6(a) and 6(b) are in effect, the government has contracted with a resettlement agency to provide assistance to the alien once he eventually arrives in the United States, and the alien has a qualifying bona fide relationship on this basis. Prior to the refugee’s arrival, however, the relationship is solely between the government and the agency, not between the agency and the refugee. Indeed, the agency typically has no contact with the refugee before his admission. Because the fact of an assurance does not itself create a relationship between a refugee and a resettlement agency, the government has not treated that fact alone as sufficient to trigger the injunctions. To do so (as the district court did) would render the refugee portion of this Court’s decision effectively meaningless.

Second, for aliens abroad who seek a visa, this Court similarly held that the suspension in Section 2(c) of the Order may not be enforced against an individual with a credible claim of a bona fide relationship to a U.S. person or entity, including “a close familial relationship” with a U.S. individual. IRAP, slip op. 12 (emphasis added). In interpreting what degree of closeness is required, the government looked to the waiver provision of Section 3(c)(iv) of the Order, which allows waivers for aliens who seek “to visit or reside with a close family member (e.g., a spouse, child, or parent)” in the United States. Order § 3(c)(iv). That waiver provision in turn reflected the provisions of the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., governing eligibility for family-based immigrant visas, which are limited to spouses, children, parents, and siblings. In light of related INA provisions and this Court’s stay decision, the government has further interpreted the phrase “close familial relationship” to include fiancé(e)s and parents- and children-in-law.

At respondents’ urging, however, the district court interpreted that phrase also to include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, and siblings-in-law. Again, that interpretation empties the Court’s decision of meaning, as it encompasses not just “close” family members, but virtually all family members. Treating all of these relationships as “close familial relationship[s]” reads the term “close” out of the Court’s decision. Moreover, by divorcing the Court’s language from its context — namely, the Order’s waiver provision and the immigration provisions on which it was based — the district court adopted an expansive definition untethered to relevant legislative enactments or Executive action.

The entire court rejected the concept of “clarification,” but once again, Thomas, Alito and Gorsuch were in the minority as to staying the lower court order. The majority stayed only part (as to refugees), but not the absurd expansive definition of close family used by the District Court.

There already was an appeal and motion for a stay to the 9th Circuit, which we covered in a prior post. The briefing schedule extend out through the end of September. Expect the government to go back to the 9th Circuit and seek an expedited ruling.


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rabid wombat | July 19, 2017 at 1:14 pm

That was quick….

“…issued a second preliminary injunction expanding who was exempted to – anyone with a pulse who desired to emigrate to the USA.”

This is leftist tyranny on display. They didn’t get their desired outcome from the ballot box, so the leftists judge shop until they get the desired outcome from the courts. Bastages all!

And they never stop. Ever. They’ll be back with another lower court turd to throw at the white house.

    So now what? We’ve known it’s been leftist tyranny for quite some time. What can we resort to at this point?

    I’m really getting sick of this crap.

Can the legal eagles here explained to us non-lawyers exactly what this decision means?

    Tom Servo in reply to Exiliado. | July 19, 2017 at 2:36 pm

    It means that at this point in time there are only 3 Supreme Court Justices you can trust to actually follow the law, and until that number goes to 5 (which will take years and years of this level of fighting) then Everything this administration does is going to be attacked and stalled, as is happening here.

    NavyMustang in reply to Exiliado. | July 19, 2017 at 2:39 pm

    That SCOTUS told Hawaii to shut up and sit down?

      heyjoojoo in reply to NavyMustang. | July 19, 2017 at 3:15 pm

      From, the looks of it, it sounds like they were not told to sit down this time. I’m really getting sick of this legal footwork crap by the leftist activists.

      Not even close. Basically what SCOTUS just told Hawaii is “If you throw something at us that is clearly not within your jurisdiction to even hear due to separation of powers, you can hear it, and the SCOTUS will give you cover.

      THEN, even if we the SCOTUS give you inferior Court a directive that says ‘we think the people you favored are going to lose’ when we actually get to hear this thing, and give direction to the Government as to how to implement its own policy, which the Government is separately EMPOWERED to do without your meddling inferior Court, we will STILL let you, the subservient Court hear a ridiculous challenge attempting to expand the meaning of what we said, and then not simply tell you, inferior court, to knock it off.

      It’s like giving a child who throws a screaming tantrum in public a small piece of candy after they demanded a whole jar, simply to attempt to get them to stop throwing the tantrum. Actually, this is WORSE, because it empowers all the OTHER children to throw their OWN tantrums (aka the other District Courts anywhere there isn’t a Conservative Circuit Court of Appeals).

        heyjoojoo in reply to Chuck Skinner. | July 19, 2017 at 3:41 pm

        That’s what I was wondering – what William had explained as well.
        So tired of this.
        We just need someway to defang the group or groups.

Why is John Roberts the Traitor not on the list of individuals who would have stayed the District Court ruling in its entirety?

Oh, yeah, now I remember: He’s John Roberts the Traitor.

Gremlin1974 | July 19, 2017 at 3:10 pm

Here is a question that may have no answer. Would SCOTUS’s reluctance to clarify and Stay the interpretation of “close family” be because they are waiting on the justification for the Hawaii court to explain why this should not be the executive branch’s decision?

    No. This is the Liberal members of SCOTUS trying hard to be able to stifle the Court through blocking anything they can based on “feelings.”

    It also means that “John Roberts the Traitor” and “Kennedy the Waffler” have decided that they value the adoration of the Press over the separation of powers (but we knew that about both of them already).

So, it will be a [class] diversity judgment based on the degrees of consanguinity.

It seems that a rational and principled alternative would be to offer priority placement for family, but would not preclude or reduce increased scrutiny when there is evidence of character alignment by individual, or social (e.g. community) and geographical proximity, or local incompetence or resistance to verify emigrant status.

That said, rather than force catastrophic anthropogenic immigration reform to coverup the collateral damage from social justice adventures, to create democratic leverage (e.g. gerrymandered districts), for redistributive change (e.g. welfare profits), and other purposes, why not colonize these unstable nations and share resources?

The Chinese have done this in Africa to great success. It may also be a reason why they ended their “Pro-Choice”-like policy of denying lives deemed unworthy in their own nation. So, they managed to reduce Planned Parenthood, stabilize foreign populations, make capital investments, open or expand new markets, and receive exclusive access to natural resources. Win, Win.

Give Merkel a call. The Germans know how to do this.

What it means is that construction of missile defense batteries to knock down North Korean missiles will be relocated right next door to a certain Hawaiian Judge’s house.

“Sick and tired of legal games… What can we resort to at this point”

Not much. We just have to take it. We want a Legal Insurrection but our leaders have allowed the justice system to become perverted and corrupted.

I’m sorry but there are no civil options. We have decided that Priciple is a suicide pact. We insist on playing by the rules, our opponents are above the law, outside the law.

I have often said that if one abuses the law, is outside the law, then the law no longer protects them. That concept has been declared radical and beneath us. Very well.

So I guess take some small comfort in the fact that the Jihad targets large population centers, blue city-states. That’s one truism about corruption – it never fails to come back and bite the corrupt.

    DaveGinOly in reply to Fen. | July 19, 2017 at 6:29 pm

    “I have often said that if one abuses the law, is outside the law, then the law no longer protects them. That concept has been declared radical and beneath us. Very well.”

    I’ve written something very similar myself:
    An “outlaw” is not just a person who operates outside the law – while doing so, they also put themselves outside the protection of the law.

Am I wrong in believing that the District Court’s construction of the word “relative” is so expansive and broad as to render the additional scrutiny sought by the Trump Administration essentially meaningless?

It’s both laughable and dangerous that the Court has been so successful in obstructing — on the basis of flimsy and utterly contrived notions of “jurisprudence” — a clear exercise of Executive authority that is rooted in long-standing precedents and caselaw.

    guyjones in reply to guyjones. | July 19, 2017 at 4:23 pm

    I’d amend the word “clear” in my last sentence to read “legitimate.”

    Close The Fed in reply to guyjones. | July 19, 2017 at 10:29 pm

    Well, what gets me is, this would have permitted the san bernadino wife-to-be in, so she could fulfill her destiny to become a mass murderer.

    Jefferson said the courts were obtaining more and more power, and that it only ratched in one direction. He was sooooo right, and so prescient. THAT was a visionary.

      Ragspierre in reply to Close The Fed. | July 20, 2017 at 6:00 pm

      I’ll patiently point out…again…that the San Barboo killer would not have been touched by T-rump’s EO.

      She was not from ANY of the subject nations.


Given everything that the State of Hawaii asked for, this would not be considered a “win” for them… unless you consider asking for sex with Scarlett Johansson and then having to settle for a kiss on the cheek from your sister a win.

Let’s not also forget that several lower courts ruled that the ban was unconstitutional across the board, and that it’s effectively implemented… just not “exactly” how the Administration wanted.

But the bigger issue here is whether or not the Robert’s court can take their eye of the politics of things long enough to reassert the fact that they are the “Supreme Court” and that allowing this circular litigation questioning their final decisions is bad for the basic “concept” of the USSC. For no other reason than to send the message that their ruling are the end of things… they should have just stayed the whole thing till “their” decision in October (and not even allowed the 9th to rule)

I know that the SCT is trying to be measured and judicial, but every inch they give just encourages the lawless.

At least Trump can be rigorous in the documentation required by these invaders to prove they are related. That means that none of the documents issued inside these countries should be considered valid.

This is nothing more than moral cowardice on the part of the majority members of the SCOTUS. There was NO reason for the Court to refrain from ruling with regard to the family member issue. Unless the 9th rules in favor of the Executive on that issue [don’t hold your breath for that to happen], it is going back to the SCOTUS, where it was yesterday. So, what purpose is served by refusing to address that issue at this time? CYA. It is politics. Nothing more. Roberts and, to a lesser extent, Kennedy know that the law and the Constitution are firmly on the side of the Executive in this case. But, they want to rule against the Executive in this area, for political purposes. The three liberal justices do not care about the law or legal president so it doesn’t matter to them. To refuse to “clarify” its position on the language of its own order is ridiculous.

The problem is that the Courts really have no jurisdiction over the executive. Both the Constitution and statute make this clear. To submit this matter to the Courts, even to SCOTUS, is to arrogate executive powers to the Judicial branch, even if POTUS gets a good ruling, which is doubtful. The only real way to handle the Constitutional crisis of the Judicial branch clearly intruding on the executive, is for the Executive to refuse to play. They should file a demurer, and simply state that they will not argue or brief the case because they are not subject to control by the Judiciary. Then let the Courts enforce their will, if they can. They have no significant enforcement body besides the Executive. In other words, tell them to go pound sand.

    Ragspierre in reply to lawdoc. | July 20, 2017 at 8:23 am

    “The problem is that the Courts really have no jurisdiction over the executive. Both the Constitution and statute make this clear.”

    Uh…yeeeeah. They DO. And a damned good thing, too. What do you think “checks and balances” means?

    And where was this sentiment when our fine DC judge here in Texas stayed Obama’s kiddie tide?

    Good grief. You people…

      CHTruth in reply to Ragspierre. | July 20, 2017 at 9:12 am

      Actually the constitution is more about separation of powers than about “checks”. The constitution is quite clear about the fact that the executive branch (who has all branches of the military and all intelligence agencies answering to them) is largely responsible for decisions on national security.

      The Executive branch is given 100% leeway to make short term military decisions without any checks (because they alone are provided with all the information needed to make such decisions). Only if they want to make that military action longer term are they required to bring in the Congress to either declare or provide an Authorization of Military Action. Generally at that time the executive branch would open up the intelligence to either the intelligence committees or even the full Congress to help with that decision.

      The constitution provide NO SUCH REQUIREMENT for the executive branch to go to court to ask permission, and nobody in the Judicial branch is provided the security clearance necessary to make any sort of Judgement calls on this.

      Certainly you cannot expect that the constitution allows that any one of 800 District Court Judges could decide (on their own) to overrule the entire intelligence community, military, executive branch, and legislative branch on an issue where they are (by design) left out of the information that is required to make a decision. Certainly Judge Robart from San Francisco cannot order a Military commander to stop military action?

      Can he?

      But hey… if the Courts feels that preventing a person from Syria to travel here is somehow a constitutional issue for them to decide… then by logic, the Courts should certainly believe that preventing a person from Syria from being killed in a bombing raid is a constitutional issue for them to decided.

      That is your slipperly slope… and ultimately that is your logic of the courts being a “check” on the national security decisions of our 19 intelligence communities and 4-5 military branches (depending on whether you include the coast guard).

        Ragspierre in reply to CHTruth. | July 20, 2017 at 10:08 am

        You did a pretty good job of stating the exception to the rule vis military action. It’s an exception the courts themselves have recognized and ruled on. Or did you miss that?

        But here’s where the wheels fall off your wagon…

        “But hey… if the Courts feels that preventing a person from Syria to travel here is somehow a constitutional issue for them to decide… then by logic, the Courts should certainly believe that preventing a person from Syria from being killed in a bombing raid is a constitutional issue for them to decided.”

        According to YOUR logic, the courts would have no business ruling on FDR’s internment of Japanese as a matter of national security. National security isn’t a fig leaf that covers all issues and leaves them in the sole purview of the executive.

        We don’t want the executive to run with scissors in the name of national security. Many of us feel the executive has accreted too much power over the last several decades using that justification.

        This does not ever mean we don’t feel that the judiciary has ALSO accreted too much power, as well. It certainly has.

        One of the maddening things about this whole fiasco is that the law, as chiseled out by the courts, the executive, and the legislature, is (was) clear as regards this EO.

        But to deny that the courts have a role here is loopy. They certainly DO, and they certainly HAVE.

    Milhouse in reply to lawdoc. | July 20, 2017 at 11:10 pm

    The problem is that the Courts really have no jurisdiction over the executive. Both the Constitution and statute make this clear.

    Not quite. The Great Writ, which the constitution explicitly recognizes and protects, is a writ issued by the judiciary to the executive, which the executive must obey.

The Courts would not have the authority to rule on FDR’s internment of American Japanese as a matter of merit. The Court would not have the authority to simply say they disagreed with the Executive branch’s decision because they thought it to be a poor national security decision.

The courts can absolutely rule on whether or not the internment violated the constitution or other laws. Did it violation equal protection. Did it violate the fourth amendment. Etc, etc… that is exactly the role that the Court are designed to have. When you choose to basically jail American citizens because of their race, it seems to be an obvious violation of those citizen’s constitutional rights.

As a matter of this particular District Judge ruling on what constitutes a “close family member”, there is not any sort of constitutional issue (as Syrians or Somalians have no constitutional right to come to our country). The Judge doesn’t offer a constitutional justification for his decision.

He certainly doesn’t offer that the State of Hawaii has federal Authority over the Dept of Homeland Security in terms of setting those rules. The only viable court case on this is the USSC decision (where they didn’t clarify it) so there really isn’t a court precedent. So in essence this Judge simply took it upon himself to decided that on a matter of merit… that he agreed with the State of Hawaii over the Dept of Homeland Security and therefore because he is a “judge” he gets to decide.

Whenever the issue falls to a matter or merit, that is outside the boundaries of what the constitution allows the Courts to do. it also is outside of the logical reasoning of any functioning organization or society. Those with the most expertise in each area is who should ultimately make those decisions.

That is why we have three “EQUAL” but “SEPARATE” branches. With that concept, comes the reality that each branch WILL have specific areas where they will maintain virtually full control of the decision making, with limited checks.

Executive branch has nearly full control of the decision making of national security issues, as they should considering all of our national security intelligence and military is part of that branch and ultimately all of that information funnels to the heads of the military, director of National intelligence, national security adviser and ultimately the President. The constitution provides certain checks to the legislative branch (they do need to authorize some actions such as extended war) and to the judicial branch in that what they can do must be technically legal.

Same with the legislative branch. They have their place with the 535 members, all with congressional staffs doing all sort of research, putting thousands of man hours into researching public policy in order to come up with the best legislation. In theory, that “should” produce the best legislation (even if it not always does). The checks on that would be that the President can still veto legislation, and that they (like the executive branch) must follow the law.

But the Courts are not allowed to “Check” either of those branch on merit… or simply because they believe that they “know better”. They are not provided with security clearance, much less have 19 intelligence agencies and five military branches answering to them. They are not provided a congressional research team to spend months or even years looking into potential legislation.

Putting a black robe on a person does not automatically grant them infinite wisdom to be the final arbitrators of every decision made by everyone in all branches of the Government. Their expertise lies specifically in their understanding of the laws and the constitution. Their expertise is therefor limited to the law.

The check for them, is that the constitution does not allow them to overrule the other two branches on matters of merit. Unfortunately that check is sort on the honor system… and today’s judiciary does not have the honor to put their country ahead of their own aspirations of power.

The true danger isn’t that the executive branch will become too powerful. The true danger is that the Courts will continue to push themselves into more and more decisions of substituting their own (uninformed) judgement over those who are informed and constitutionally tasked to make the judgement.

    Ragspierre in reply to CHTruth. | July 20, 2017 at 11:44 am


    Milhouse in reply to CHTruth. | July 21, 2017 at 12:59 am

    By the way, it’s commonly believed, and routinely taught in schools, that SCOTUS in Korematsu upheld the internment of US citizens with Japanese ancestry, but this is not true. The decision in Korematsu explicitly notes that the internment orders were not at issue in that case. The only issue was the order excluding such citizens from three states, leaving them free to go wherever they liked in the other 45. This SCOTUS upheld. But on the very same day it also decided Endo, in which it ruled that the government had no authority to detain concededly loyal citizens, even temporarily.