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Twice rejected, Hawaii goes to court AGAIN to halt Trump Travel Order implementation

Twice rejected, Hawaii goes to court AGAIN to halt Trump Travel Order implementation

“This Court should not permit the Government to flout its directives at the expense of countless Americans and their loved ones”

We previously wrote how the State of Hawaii (with co-plaintiff Dr. Ismail Elshikh) struck out in Hawaii federal court and in the 9th Circuit, in seeking “clarification” of how Trump’s Travel Order No. 2 was to be implemented in light of the prior court injunctions and the Supreme Court’s substantial overruling of those injunctions:

The key problem identified by the court was the Hawaii’s request for “clarification” was not proper. The District Court ruled that if Hawaii wanted clarification of a Supreme Court Order, it should seek such clarification from the Supreme 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….

* * *

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.”

The 9th Circuit held that it had no jurisdiction to review a denial of clarification:

We lack jurisdiction to address Plaintiffs’ appeal of the district court’s order denying the motion to clarify the scope of the injunction. This court possesses jurisdiction to review only final judgments and a limited set of interlocutory orders. See 28 U.S.C. §§ 1291, 1292(a). The district court’s order neither resulted in a final judgment nor engaged in action deemed immediately appealable in 28 U.S.C. § 1292(a). Specifically, the district court’s order did not “grant[], continu[e], modify[], refus[e], or dissolv[e]” an injunction, or “refus[e] to dissolve or modify” an injunction. Id. § 1291(a)(1).

Nor do any of the various judicially-crafted bases for appellate jurisdiction apply under these circumstances. Because the “practical effect” of Plaintiffs’ requested relief is declaratory in nature—not injunctive—we do not construe their clarification motion before the district court as one for injunctive relief.

The 9th Circuit all but invited Hawaii to reformulate what it was seeking:

Finally, we note that although the district court may not have authority to clarify an order of the Supreme Court, it does possess the ability to interpret and enforce the Supreme Court’s order, as well as the authority to enjoin against, for example, a party’s violation of the Supreme Court’s order placing effective limitations on the scope of the district court’s preliminary injunction. Cf. United States v. El-O-Pathic Pharmacy, 192 F.2d 62, 79–80 (9th Cir. 1951). But Plaintiffs’ motion before the district court was clear: it sought clarification of the Supreme Court’s June 26 order, not injunctive relief. Because the district court was not asked to grant injunctive relief or to modify the injunction, we do not fault it for not doing so.

And sure enough, Hawaii late Friday night filed a new request, a Motion to Enforce or Alternatively Modify (pdf.) the District Court’s prior injunction, and a supporting Declaration (pdf.). Full copies of each are embedded at the bottom of this post. The Court entered an Order on the docket:

The Court is in receipt of Plaintiffs’ Motion to Enforce or, In the Alternative, to Modify Preliminary Injunction. Dkt. No. 328. Defendants shall file their opposition by Tuesday, July 11, 2017. Plaintiffs shall file any reply by Wednesday, July 12, 2017. The parties’ opposition and reply briefs are limited to no more than 15 pages each.

Here is the relief sought by Hawaii in the Motion:

The Government has announced that it is implementing, and that it intends to continue implementing, Executive Order 13780 in a manner that conflicts with the portions of this Court’s preliminary injunction that were not stayed by the Supreme Court’s June 26, 2017 ruling. Plaintiffs therefore request that the Court issue an Order enforcing or modifying its preliminary injunction to reflect that:

(1)the injunction bars the Government from implementing the Executive Order against grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States;

(2) the injunction prohibits the Government from applying sections 6(a) and 6(b) to exclude refugees who: (i) have a formal assurance from a resettlement agency within the United States (ii) have a bona fide client relationship with a U.S. legal services organization; or (iii) are in the U.S. Refugee Admissions Program (“USRAP”) through the Iraqi Direct Access Program for “U.S.-affiliated Iraqis,” the Central American Minors Program, or the Lautenberg Program;

(3) the injunction bars defendants from suspending any part of the refugee admission process, including any part of the “Advanced Booking” process, for individuals with a bona fide relationship with a U.S. person or entity; and

(4) the preliminary injunction prohibits the Government from applying a presumption that an applicant lacks “a bona fide relationship with a person or entity in the United States.”

And sure enough, Hawaii told the District Court in its supporting Memorandum that the 9th Circuit has approved this procedural path:

This Court found that it lacked authority to grant the particular relief Plaintiffs requested: a motion to clarify. But the Ninth Circuit has stated that there is an alternative, viable route for this Court to prevent these brazen violations of its order. This Court, it explained, “does possess * * * the authority to enjoin against* * * a party’s violation of the Supreme Court’s order placing effective limitations on the scope of the district court’s preliminary injunction.” Dkt. 327, at 3.

Plaintiffs respectfully request that this Court follow the path the NinthCircuit laid out. It should enjoin the Government’s bald attempts to thwart the Supreme Court’s and this Court’s will. In the alternative, Plaintiffs respectfully request that this Court modify its injunction to make clear that the Government’s current course of conduct is unlawful. One thing is clear: This Court should not permit the Government to flout its directives at the expense of countless Americans and their loved ones, and it possesses the authority to prevent the Government from so doing.

The problem with Hawaii’s request, even if the form has been fixed, is that substantively Hawaii is wrong.

The Trump implementation is consistent with the explanations given by the Supreme Court as to who had a “bona fide” relationship to the U.S., such that the person would not fall under the Travel Order. My explanation was fairly lengthy, so see my prior post, Hawaii seeks injunction against Trump admin interpretation of SCOTUS Travel Order ruling. I concluded:

It appears that at least as to visa entries, Hawaii is trying to expand the limiting language (quoted above) as to who is exempt from the Travel Order….

Expect a fast ruling. And if Hawaii loses, the 9th Circuit panel seems eager to hear the case.


Hawaii v Trump – Post-SCOTUS Motion to Enforce or Modify Preliminary Injunction by Legal Insurrection on Scribd


Hawaii v Trump – Declaration and Exhibits in Support of Post-SCOTUS Motion to Enforce or Modify Preliminary… by Legal Insurrection on Scribd


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Halt ALL immigration period. There is no point proceeding until the government can demonstrate that it is capable of processing applicants with proper vetting while screening out all who cannot demonstrate that they will not be wards of the state.

It is explicitly within the POTUS’ constitutional authority to do this and there would be absolutely no room to quibble on interpretations. QED. Do it now!

    OleDirtyBarrister in reply to Pasadena Phil. | July 9, 2017 at 4:37 pm

    This is true. This is not 19th century America with a public domain to dispose of and a need to hold the territory against aggressive nations (Mexico, France, Spain, England, etc.). Further, we are not in an industrial revolution in which bodies are needed for labor and fluency and literacy are not so important. To the contrary, we have to many ignorant and illiterate, too many inactive bodies, too many poor, and too many supplicants on transfer programs.

    The US could reform immigration to the type needed, which is the importation of superstars. We could recruit about 10,000 primaries per year an make accommodations for their desired accompanying family members, and thereby import maybe 50,000-100,000 per year altogether but extend no transfer benefits to them. The primary immigrant has to support them. Further, there is no more of this one foot here and one foot in the old country. If they come here, they surrender their old citizenship and are “all in.”

    There is little reasonably doubt that the aforementioned immigration strategy would be beneficial. Further, it is a good alternative to duplicating poverty. That strategy, coupled with un-screwing education and putting strong vocational training in place and rolling back lifetime entitlement to transfer programs would help this country considerably. The domestic underclass would be doing the work that they need to be doing because they would be incentivized and have no alternative to work, we would not be importing more poverty, and we would diminish the incentive of those who have given up on the domestic underclass to hire illegals.

    OleDirtyBarrister in reply to Pasadena Phil. | July 9, 2017 at 4:40 pm

    Also, under the SCOTUS precedent in Goldwater v. Carter, judicial review of a POTUS decision to unilaterally withdraw from a treaty is precluded under the political question doctrine. Thus, Trump could block all refugees with a one page document and one signature and the marxists in this country could do nothing about it but march and burn stuff.

      tom swift in reply to OleDirtyBarrister. | July 9, 2017 at 4:50 pm

      We could help the Marching Marxists out with some “free fire zones”—places where it’s OK to burn stuff.

      Places like, say, Baltimore.

JackRussellTerrierist | July 8, 2017 at 6:46 pm

This is like watching a priest throw holy water in the devil’s face.

Can we slap them with a frivolous lawsuit complaint and make them give us free pineapples or something?

    4th armored div in reply to windbag. | July 9, 2017 at 9:40 am

    if Hawaii or any other state want to conduct its’ own foreign/domestic policies they need to secede from the Union and then pay for its’ own defense etc.

Hawaii believes that the Trump administration will repeat the bad faith actions of the Obama administration, DNC, civil rights groups, and reformed religious organizations. So, instead of waiting for evidence to confirm their suspicions, they are seeking to proactively secure the status quo. The rise of anti-nativism is a clear and progressive threat that has been realized in global elective wars, forced refugee crises, Planned Parenthood, gerrymander-seeking democratic institutions, and profit-seeking public and private corporations.

Dear Milhouse…NOW can we can call this contempt of the Court?

Reminder about the Left: They NEVER give up, they NEVER give in…NEVER…NEVER…NEVER… especially when they can spend other peoples’ money to do it. They NEVER lose… it is always stolen and must be stolen back.

Obama and the Dems are running a Government in Exile. They have the press as a 5th column propaganda arm. The well seeded courts and departments are the holding action… again using the power within their governmental fiefdoms to undermine the intended operation of elected government.

Wouldn’t it be interesting to know what planning is really going on in the shadows by these plotters? You do not dare … or join Seth…

    Tom Servo in reply to alaskabob. | July 8, 2017 at 7:52 pm

    In the big picture view, I am glad that Hawaii is fighting this – it shines a spotlight on just how corrupt and politicized the Federal Circuit and Appeals Courts have become after 8 years of Obama. Most people, even here, still view most court decisions on that level as containing some shreds of integrity – they do not, and everyone needs to see that.

    The 9th circuit carefully drew a road map for the Hawaii AG to follow, and now he has followed it. I expect the 9th Circuit to find in favor of this suit, and to essentially dare the SCOTUS to slap them down again. They’ll be hoping that there will be 5 votes on the SCOTUS that don’t want to deal with this and who will find some way to punt the ball. With Kennedy still on the court, they could be right.

    Long story short – it’s certainly not contempt of court when they have this good a chance of winning. It’s arguably contempt for our entire concept of non-politicized justice, but that’s a different issue entirely.

      Tsquared in reply to Tom Servo. | July 8, 2017 at 8:29 pm

      With the lower court questioning the Supreme Court decision what would it take to remove the judges in the inferior court?

        Milhouse in reply to Tsquared. | July 9, 2017 at 12:24 am

        The lower court is not questioning the supreme court’s decision, and it takes either an idiot or a liar to claim it is.

    Milhouse in reply to alaskabob. | July 9, 2017 at 12:22 am

    No, alaskabob, it is NOT contempt of court. HI is not defying the injunction; on the contrary, it’s seeking its enforcement, exactly as the 9th circuit told it to do.

      counsel in reply to Milhouse. | July 9, 2017 at 8:21 am

      The District Court did not give Hawaii leave to file an interlocutory appeal with the Ninth Circuit. The District Court gave Hawaii leave to file a petition with the Supreme Court. The District Court ruled it did not have jurisdiction.

      Filing yet another motion with the District Court instead of a pleading with the Supreme Court does not show respect for the District Court.

      The Federal Rules of Civil Procedure give the Federal Government several paths to seek sanctions against Hawaii given this pleading history. A motion for sanctions would be far from frivolous.

      Such sanctions are rarely granted and sanctions would be highly unlikely. However, a motion for sanctions could be well pled and substantive. Such a Motion might serve as a warning to Hawaii that its antics are not going to be further tolerated, particularly if the Supreme Court incorporates the Motion into its current case.

        Ragspierre in reply to counsel. | July 9, 2017 at 9:26 am

        “The District Court did not give Hawaii leave to file an interlocutory appeal with the Ninth Circuit.”

        That’s, I think, procedurally sound. The way you swat it down is to plead that the motion is not properly before the court.

        No drama, but effective.

      Ragspierre in reply to Milhouse. | July 9, 2017 at 9:19 am

      Let’s keep terms and concepts in their proper cubbyholes.

      “Contempt” generally involves a lot of due process, including a “show cause” hearing that gives someone under threat of contempt to justify what they’ve done, or amend their behavior.

      “Sanctions” are rather a broad set of tools that address conduct that may not ever be “contempt”, and they can be awarded in various ways and based on several rules of procedure, including baseless pleadings and discovery abuses. And pretty much not without allowing the offender to cure their violation.

      I’ve never seen or heard of an appellate court imposing either, but I’m certainly no expert in the field.

rabid wombat | July 8, 2017 at 7:18 pm

This reminds me of the joke about a bear and a hunter. The bear is the Supremes, and the hunter is the State:

Punchline: The Bear thought for a moment then said, “You don’t come here for the hunting, do you?”

Pelosi Schmelosi | July 8, 2017 at 7:48 pm

Anyone have a meme of Trump doin the CNN smackdown on Hawaii?

I have vacationed in Hawaii several times. I always thought of that State as such a beautiful and peaceful place to visit. The Hawaii AG is working hard to get me to spend my vacation dollars in a state where they do not use my money to work so hard against my interests for this country and my family.

    gospace in reply to TX-rifraph. | July 9, 2017 at 2:26 pm

    I was in Hawaii a few times. Once for a 10 week class. During the length of that class, 10 of my classmates were mugged, an average of one a week.

    It’s a nice place to visit- if you stay in in the tourist areas and with groups and don’t venture out of them.

Is there a mechanism to renounce Hawaii’s statehood? It’s only been a state since 1959, and a number of people have credibly questioned the annexation of Hawaii in the first place.

From a strategic POV we no longer need Hawaii. In the run up to WWII the Japanese made the decision to attack Pearl Harbor because they considered the fleet’s presence there a “dagger pointed at the heart of Japan.”

Well, guess what. Now we have an entire fleet home ported in Tokyo bay. What with Guam and potential basing rights in the Philippines who the hell needs Hawaii? It’s an overpriced beach stocked with @$$holes, including the the Honolulu cop who almost ran me down in a crosswalk AGAINST A RED LIGHT on his way to a convenience store two blocks down.

Good riddance, Hawaii. You want the haoles to leave? Fine. And we’re taking your American citizenship with us. Good luck with those NORK ICBMs.

    Rick the Curmudgeon in reply to Arminius. | July 9, 2017 at 12:00 am

    If Hawaii is forced out of the union, the only interest the NORCS will have in it is to test the accuracy of their ICBM’s.

Insane in the membrane

And the judge/court shopping continues…

The biggest problem with all of this is that the petitioner [the State of Hawaii] is addressing the wrong venue.

The SCOTUS has issued an order essentially overturning the temporary injunctions issued by the district courts, though certain actions of the Executive Branch are still enjoined as described in the order of the SCOTUS. Additionally, the SCOTUS has retained jurisdiction in the case, by scheduling it for a full hearing in October. So, whether the 9th Circuit likes it or not, neither the district court nor the 9th has any authority to modify the order of the higher court. The only thing that the district court can do, is refer the motion of the petitioner to the SCOTUS. And, the 9th can only get involved if the district court modifies Scorus’ order and then it can only vacate the action of the lower court and refer the petitioner to the SCOTUS.

As for the action of Hawaii being contempt of court, they would more correctly be engaged in judicial harassment; which could become contempt of court if the court told them to cease and desist bothering it in this matter. The district court has already told Hawaii to contact the SCOTUS with regard to this case. By continuing to bother the district court with these frivolous legal requests, after being directed to the originating court for the order in question, the SCOTUS Hawaii is coming perilously close to being ordered to cease and desist bothering the district court with this matter.

But, the this is exactly the action that the 9th wished to see occur. Now they will attempt to put their oar back into the water. However, whatever the 9th does, it is still going to end up with the SCOTUS and, there is a very good case for the President to simply ignore anything coming out of the district or appellate courts, as the SCOTUS now has overriding jurisdiction.

All I want is a judgement from the 9th that starts out “Dear stupid” or perhaps the infamous letter:

Dear (name of Hawaii AG here)

It has come to our attention that somebody is writing pure nonsense and signing your name to it. We thought you would like to know.
9th Circuit Court

The District Court likely lacks jurisdiction over this matter. Of note, the case was not remanded to the District Court or to the Ninth Circuit. The legal issues raised by Hawaii remain before the Supreme Court of the United States and should be the sole province of the United States Supreme Court.

All Federal Courts should defer review of the broader legal issues until the Supreme Court has ruled. The only thing ripe for review is the meaning of close relationship on a case by case basis. A broad review is unseemly and likely exceeds the Courts jurisdiction.

The Ninths Circuit’s analysis that District Courts may enforce Supreme Court law is flawed. It is rare for the Supreme Court to issue its own temporary injunction. But that is essentially what it did in its per-curium opinion of June 26th. Since the law has not been decided, the only Court to enforce, interpret or modify the temporary injunction should be the issuing Court — the United States Supreme Court.

    sidebar in reply to countrylaw. | July 8, 2017 at 9:58 pm

    Be careful. The noted legal authority Mr. Justice Milhouse will likely call your careful analysis stupid or frivolous. There is likely little case law on this issue because what Hawaii is seeking to do is well — just not done.

    Milhouse in reply to countrylaw. | July 9, 2017 at 12:39 am

    The supreme court didn’t issue an injunction. It modified the HI district court’s injunction. Thus enforcement of the portion that the supreme court left standing, i.e. as applied to people with bona fide connections to the USA, remains with that court. HI believes, with good cause, that the federal government intends to violate the injunction by denying admission to the grandchildren, niblings, etc., of US persons. So it’s turning to the disctrict court for relief.

      sidebar in reply to Milhouse. | July 9, 2017 at 5:38 am

      Thank you Mr. Justice Milhouse. Where do you practice law?

        Ragspierre in reply to sidebar. | July 9, 2017 at 7:18 am

        Milhouse is not a lawyer, but I don’t get why you’ve decided to gnaw on him.

        He’s often right, and you don’t seem to know any better than he does about what he said.

        He’s a contrarian, that’s something this site needs more of, seems to me.

          sidebar in reply to Ragspierre. | July 9, 2017 at 8:37 am

          I find Millhouse’s certainty about areas of unsettled law rather grating. But your are right. If Milhouse is not an attorney one cannot expect him to behave decorously.

          Ragspierre in reply to Ragspierre. | July 9, 2017 at 8:46 am

          To “…behave decorously” is not something I associate with being an attorney, partly because a lot of the most successful trial attorneys in history were and still are pretty rough.

          Part of what we learn in law school is that power of equivocation we have to have to deal with all the often conflicting stuff we have to accord. I can see why you’d chaff at certitude. It conflicts with a lot of our training.

          oldav8r in reply to Ragspierre. | July 9, 2017 at 11:28 am

          When one answers thusly: “The lower court is not questioning the supreme court’s decision, and it takes either an idiot or a liar to claim it is.”

          They deserve some gnawing IMHO

      Obie1 in reply to Milhouse. | July 9, 2017 at 7:06 am

      I’m having niblings with my eggs for breakfast.

For some reason, that death penalty case where the SCOTUS put a stay on stays comes to mind.

My modest albeit fearless prediction:

SCOTUS will ultimately tell Hawaii, et. al. the legalese equivalent of “What part of ‘F**k no’ don’t you understand? F**k…or no?”

I would like President Trump to speed up the filling of the judicial vacancies especially in the 9th circuit. There needs to be more conservative/originalist judges ASAP. What is the progress on that?