The District Court in Hawaii recently granted yet another injunction against a Trump Travel Order, in that case Travel Order No. 3. In light of prior Supreme Court stays of similar injunctions, the Hawaii District Court Order was plainly ridiculous. I noted at the time:

I can’t say I’m surprised by the result, considering that the Judge involved here already has ruled against Trump. The problem in this decision, as it was in prior decisions by this and other lower courts, is that the Judge is substituting his evaluation of risk for that of the executive branch.

Even the 9th Circuit seems to think so, as it just issued a Stay (pdf.) of most of the District Court injunction:

The Government’s motion for an emergency stay of the district court’s preliminary injunction pending hearing and resolution of the expedited appeal is granted in part and denied in part. The preliminary injunction is stayed except as to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States,” as set out below. Trump v. Int’l Refugee Assistance Project (“IRAP”), 137 S. Ct. 2080, 2088 (2017); see also Nken v. Holder, 556 U.S. 418, 434-35 (2009).

The injunction remains in force as to foreign nationals who have a “close familial relationship” with a person in the United States. IRAP, 137 S. Ct. at 2088. Such persons include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins. See Hawaii v. Trump, 871 F.3d 646, 658 (9th Cir. 2017). “As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [Proclamation 9645].” IRAP, 137 S. Ct. at 2088.


There still is a Maryland District Court injunction, but that should not survive any more than the Hawaii injunction.

These District Court judges are acting like the litigation in the Supreme Court never took place. While it’s true that SCOTUS never ruled on the merits, the fact that it issued stays of lower court injunctions and scheduled the case on the merits (later dismissed as moot) should have been a message to all but the most tone deaf lower Court judges how to handle subsequent litigation. The 9th Circuit appears to have gotten the message, at least in part.

9th Circuit Trump Travel Order – 11-13-2107 by Legal Insurrection on Scribd


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