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9th Circuit Opinion on Trump Travel Order: Bring Your Whole Family

9th Circuit Opinion on Trump Travel Order: Bring Your Whole Family

Not just your grandparents

Thursday night, the 9th Circuit Appellate Court struck another blow to Trump’s second, scaled down travel order.

The latest, in this unnecessarily long and drawn out saga, is the 9th Circuit’s opinion allowing just about every family member of foreign nationals receiving visitor benefits exemption from the president’s travel order which took aim at countries known to be state sponsors of terror (Iran, Libya, Somalia, Sudan, Syria, and Yemen).

From the Associated Press:

A federal appeals court on Thursday rejected the Trump administration’s limited view of who is allowed into the United States under the president’s travel ban, saying grandparents, cousins and similarly close relations of people in the U.S. should not be prevented from coming to the country.

The unanimous ruling from three judges on the San Francisco-based 9th U.S. Circuit Court of Appeals also cleared the way for refugees accepted by a resettlement agency to travel here. The decision upheld a ruling by a federal judge in Hawaii who found the administration’s view too strict.

“Stated simply, the government does not offer a persuasive explanation for why a mother-in-law is clearly a bona fide relationship, in the Supreme Court’s prior reasoning, but a grandparent, grandchild, aunt, uncle, niece, nephew, or cousin is not,” the 9th Circuit said.

The appeals panel wrote that under typical court rules, its ruling would not take effect for at least 52 days. But in this instance, the judges said, many refugees would be “gravely imperiled” by such a delay, so the decision will take effect in five days.

“Refugees’ lives remain in vulnerable limbo during the pendency of the Supreme Court’s stay,” they wrote. “Refugees have only a narrow window of time to complete their travel, as certain security and medical checks expire and must then be reinitiated.”

The government interpreted such family relations to include immediate family members and in-laws, but not grandparents, cousins, aunts and uncles. The judge in Hawaii overruled that interpretation, expanding the definition of who can enter the country to the other categories of relatives.

Professor Jacobson, who has covered this issue at length (see here), last blogged on the subject almost two months ago:

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.

As The Telegraph notes, these categories plus the easing of restrictions on “refugee” entry, open up tens of thousands of people to entry outside the Travel Order, and I think that’s on the low side.

But that’s not what you hear in the mainstream media, which focuses on grandparents.

And you would know that the headline for the AP article listed above reads thusly:'s-travel-ban?utm_campaign=SocialFlow&utm_source=Twitter&utm_medium=AP

Yet again, the court assumes Trump’s motives are anti-Muslim and therefore discriminatory and not the least bit tethered to national security concerns.

Full opinion here:

STATE OF HAWAII vs. DONALD J. TRUMP by Legal Insurrection on Scribd

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These guys are just begging for the Supremes to get angry and slap them down.

    Matt_SE in reply to RedEchos. | September 7, 2017 at 10:24 pm

    They don’t care. This is war, and they’ll just keep issuing order after order sabotaging the administration forever. The SCOTUS will have to keep swatting them down, and every round will eat up 6 to 12 months.
    The only way this could end is if Congress started impeaching 9th circuit judges for misconduct. Who here thinks Congress has the will to do that?

      And NeverTrumpers are cheering.

        notamemberofanyorganizedpolicital in reply to SDN. | September 8, 2017 at 1:25 pm

        That be all the GOP-e.

        Arminius in reply to SDN. | September 8, 2017 at 4:21 pm

        What are you talking about? I’ve never been a Trump fan. He’s a lifelong Democrat. Trump U was never a good indicator. Donald “Free Agent” Trump is acting true to form, making deals with Schumer and Pelosi.

        He warned us.

        But that doesn’t mean I’m cheering this a$$holery on the part of dysfunctional, malevolent judges.

    All I want is for the SCOTUS to issue a one line ruling on this tomorrow that says (in more legal terms): “The decision of the 9th Circuit Court in the matter of (name) is hereby rescinded, and the judges in the case are hereby ordered to wear red noses during court from now on so all of the people brought into their courtroom know what kind of clowns they are.”

    Edward in reply to RedEchos. | September 8, 2017 at 8:14 am

    They figure Roberts is too worried about what the MSM will say about the Court to take them on.

Why can’t Trump declare that all documents originating from the banned countries are not recognized. That way no one from those countries will be able to enter the USA.

It’s the Ninth Circus, no one should be surprised.

This is incredible. I have never seen a lower court reinterpret the decision of a higher court, especially when the higher court has scheduled arguments for a permanent decision in the matter. Under normal rules, any lower court action, not specifically directed by the higher court simply is not allowed. The federal court in Hawaii is acting as a rogue court. The 9th Circuit is acting as a rough court. And, it is the duty of the SCOTUS, as the executive directors of the federal judicial system to control its subordinate courts.

This is why this country is so out of control. The Congress is out to lunch and legislative duties languish. The Courts are rudderless with a significant portion of the lower court system ruling in total contravention of existing legal tenets and precedent, thereby creating total chaos. The Executive is in semi-open political revolt against its CEO, the President of the USA. This is the setting for a situation where the people will feel obligated to govern themselves. This is already happeneing with the growth of the anarchist movement as well as the racial nationalist movements. The leaders of this nation have got to step up and demand that everyone, themselves included follow the established rules. Or there will be no nation to lead.

    artichoke in reply to Mac45. | September 8, 2017 at 8:37 am

    They sense weakness and are going for the kill. John McCain said as much when he commented that Trump had some weakness.

    It’s not Trump’s personal weakness, but the fact that he’s being rejected by so many aspects of the US deep state, as well as I think Russia internationally that is reacting because its internal control on our POTUS has been interrupted.

    It’s war on 20 fronts at once.

    Edward in reply to Mac45. | September 8, 2017 at 8:58 am

    If you haven’t seen a lower court run roughshod over a SCOTUS ruling in “reinterpretation” then you haven’t been paying attention to some of the Second Amendment (hereinafter 2d) rulings since Heller and McDonald. The most egregious example is the 4th Circus ruling on the Maryland so-called “Assault Weapon” ban (Kolbe et al v. Maryland, also styled Kolbe v. Hogan). A three Judge Appeals panel ruled against Md (2-1)stating that the proper standard for review of the state’s law was “strict scrutiny” (the normal standard for Bill of Rights cases) and not the “intermediate scrutiny” the District Court applied. MD filed a request for an en-banc re-hearing by the entire Circuit. The result was a slap in the face to Heller and, lest we forget, 1939’s Miller decision. The 4th determined that semi-automatic weapons can fire as fast as a machine gun, firing 300 to 600 rounds per minute. The standard Scalia wrote in Heller was – not in common use and particularly dangerous (“the M-16 and the like”). The 4th majority ruled that semi-automatic weapons, like the ARs, are suitable for military use and thus are particularly dangerous. Forget about “common use”. Under the 4th standard of suitable for military use, what firearm isn’t exempt from coverage by the 2d? And, lest we forget Miller, the 1939 court ruled in Miller that firearms must be suitable for military use to be covered by the 2d. While that standard no longer is in use, if the 4th is going to throw out Heller, one would think they would then use Miller.

      Mac45 in reply to Edward. | September 8, 2017 at 12:20 pm

      Two things about Kolbe v maryland.

      The first is that the SCOTUS, including Scalia, created the situation faced here. Rather than rule that the 2nd Amendment means exactly what it says, that the government may not regulate the ownership and carry of weapons, including firearms, the court rewrote the Amendment to allow for vague, unspecified exceptions. Included in those exceptions were “dangerous and unusual weapons” and Scalia specifically mentioned “M16 rifles and the LIKE”. The SCOTUS inferred that it would ultimately decide any restrictions on the ownership and possession of weapons on a case-by-case basis. So, it should come as no surprise that a liberal court would decide that high capacity, semi-automatic rifles, bearing both a nearly identical cosmetic appearance and method of operation to an M16 could be construed to be LIKE an M16, even if it was not identical.

      The second thing is, the 4th, in Kolbe v Maryland, was not interpreting a temporary judicial order of a pending case. In normal judicial proceedings, any request for clarification of a temporary order would be made to either the court issuing the order or to a higher court. In the case of the travel order case, this would have been limited to the SCOTUS as both the issuing court AND the highest court in the land.

      The problem with the 2nd Amendment is the 14th Amendment. When ratified, the 2nd Amendment ONLY applied to the federal government, not to the states. The language of the 14th Amendment made it applicable to state and local governments, along with the rest of the Bill of Rights. However, this was a wholly unforeseen consequence. Not until 2010, was the applicability of the 2nd Amendment to the states brought before the courts and decided upon, some 142 years after the amendment was ratified. Until McDonald, it was generally accepted, within legal circles, that state and local governments had the authority to regulate the ownership and possession of weapons and firearms.

    regulus arcturus in reply to Mac45. | September 8, 2017 at 10:25 am

    That was my first reaction as well, but waited to see if others had the same.

    Did not the SC make the initial determination of “close relatives” only?

    And did not Thomas, et al., dissent on the grounds that not enacting the revised ban as worded by Trump would lead to this very interpretive problem?

    The courts, and with them the country, are a disaster.

    Matt_SE in reply to Mac45. | September 8, 2017 at 10:53 am

    Congress isn’t going to fix itself. That is our job as voters. Just realize that the current leadership under Ryan and McConnell is at least incompetent if not corrupt.

    Also realize that the GOP is a POWER STRUCTURE. It consists of much more than just Ryan and McConnell. They have supporters and flunkies who keep them in power. McConnell may not be up for re-election this cycle, but lots of his supporters are.

    Kick every GOP squish out of office and replace McConnell.
    Roy Moore in AL already said he doesn’t want McConnell as Senate Majority Leader. That’s the right attitude.

I don’t think it’s unreasonable to interpret the Supreme Court’s injunction in this manner. It’s a reasonable reading of the words, and if the Supreme Court thinks it’s been misunderstood it should have been clearer, and can always jump in.

I’m much more bothered by the notion of judicial intervention in this whole matter. I think Trump was wrong to go to court in the first place. I think this was the perfect case for Trump to say “You know what, I’m not playing your game. I don’t recognize this court’s or any court’s authority to interfere with my inherent and plenary authority in this matter, so I’m instructing DOJ not to defend this action, and State and DHS to ignore any injunctions that purport to limit my order.”

    DaveGinOly in reply to Milhouse. | September 8, 2017 at 1:07 am

    Although SCOTUS was not succinct, “close relatives” obviously means there are limits to the relatives who are excluded from the order. The Hawaii and 9th Circuit courts have ignored the guidance of the high court by redefining “close” to mean “nearly all,” in obvious disregard for the spirit if not the exact meaning of SCOTUS’ opinion. Good people could quibble about the limits of “close,” but a good justice would not mistake “nearly all” for adherence to “close.”

    Is there a mechanism by which the lower courts could have petitioned SCOTUS for more clarity? If there is, that’s what they should have done. Barring such a mechanism, waiting until SCOTUS’s decision on the matter would have been the judicious and respectful thing to do.

      Milhouse in reply to DaveGinOly. | September 8, 2017 at 2:30 am

      Can you explain why a mother-in-law is “clearly” a bona fide relationship, in the Supreme Court’s prior reasoning, but a grandparent, grandchild, aunt, uncle, niece, nephew, or cousin is not? I can’t. It seems to me those are all at least as close as a mother-in-law.

      Especially since the Supreme Court’s description of those it allowed the government to exclude was “foreign nationals who lack any bona fide relationship with a person or entity in the United States”, and “foreign nationals abroad who have no connection to the United States at all”, whose admission while the case is pending would “appreciably injure [the government’s] interests, without alleviating obvious hardship to anyone else”. You cannot tell me with a straight face that this description applies to such close relations as these.

        Edward in reply to Milhouse. | September 8, 2017 at 9:05 am

        I’m not at all surprised that you can’t understand why my wife’s mother is a close relative to me, and my mother is a close relative to my wife, while our grandparents (if still alive) are a generation further removed and are not as close as our mothers.

          Edward in reply to Edward. | September 8, 2017 at 9:15 am

          And pardon me for jumping in, you did specify by emphasis “you” (DaveGinOly).

          And I agree that Trump really should have gone full Andrew Jackson* and simply say these courts have ruled now let them enforce their rule. Though he’d have to explain the Constitutional basis, for the Democrats (and some Republicans) would be jumping up and down filing Articles of Impeachment in the House and planning with McConnell how they will convict him.

          An edit function would be nice.

          * Uh oh, am I going to get in big trouble for mentioning Jackson, the slave owner?

          malclave in reply to Edward. | September 8, 2017 at 10:23 am

          Makes sense to me. Parents, children, and siblings (first degree relatives) of a person or his/ her spouse.

          Even if cousins only means first cousins, that’s still third degree. Same as a great aunt or uncle.

        Arminius in reply to Milhouse. | September 8, 2017 at 4:10 pm

        Would you even know a third cousin if you saw him?

    artichoke in reply to Milhouse. | September 8, 2017 at 8:38 am

    Problem is that Congress was and still maybe is itching for an excuse to impeach the newly elected President.

    We’re beyond the looking glass here.

    This case is pending before the SCOTUS, which court issued a temporary, conditional stay. So, under most accepted judicial procedures, any request for clarification of the meaning and limits of the order from the higher court, should be directed to that court, as it issued the order in the first place. If the SCOTUS had rendered a final decision in the matter, then interpretation would be within the authority of the lower courts when applied to other cases of similar nature. But, a lower court simply does not expand upon the order of a higher court which is still in the process of deciding the case.

    So, the district court and the circuit court have both overstepped the limits of their authority.

    As to the Trump administration ignoring the lower court orders, after the case was taken up by the SCOTUS, I agree with you. The Administrations should simply ignore the lower court orders and file a response to the affect that it recognizes only the clear orders of the highest court presently hearing the case, the SCOTUS. The lower courts can then petition the SCOTUS for “clarification” if its order.

These idiots make it sound as if America is the ONLY place these so called “refugees” can flee too. How arrogant of the justices to assume such a thing.

Then again these guys are so blinded by their left wing liberal hatred that they just don’t care about the rule of law and continue to merrily create the law out of thin air as they go along.

The sooner the 9th circuit is broken up the better. Oh, and they should all have to reapply for their jobs HAHHAHAHAHA 🙂

Let me get this straight male Dallas you think it’s really reasonable to construe close relatives is any relatives whatsoever who have any degree whatsoever of consanguinity to the person wishing to come? That close relative is means in fact all relatives?

One way for this to be settled is for Trump to try and get a stay pending an appeal to the Supreme Court. By not challenging this the Trump Administration invites further erosion of executive authority both for him and future presidents. The bigger picture is that some judges are substituting their authority for that of the executive branch; authority granted by the constitution and congress. The real power always resided in the judiciary. It isn’t what the law says, it’s what the judges say the law says.

Well of course some Federal Judge in Hawaii knows better
than the executive branch of the Federal government.

Every decision the president makes now must be vetted by a Federal judge.

This new procedure will remain in place until Trump is removed from office.

Thank you the democratic party

Once we dump traitors ryan and mcconnell, fkake, mccain, etc. the GOP Congress can start work on breaking up this warped court by adding another circuit or two.

9th circus, who’d have thunk?
Accordingly, I dissent and I’m off to Costco to buy some food.
Judge Kozinski