(UPDATED: This post has been updated to include the government’s reply to Hawaii’s opposition, filed on Tuesday night.)
The state of Hawaii responded today to last week’s request by the Trump administration to clarify exactly who can enter the United States under President Donald Trump’s March 6 executive order, popularly known as the “travel ban.” In a brief filed with the Supreme Court shortly before noon EDT, the state did not mince words as it urged the Supreme Court to leave in place a ruling by a federal judge that interpreted the scope of the March 6 order more expansively than the Trump administration had wanted.
The president’s March 6 order put a temporary freeze on both visas for travelers from six predominantly Muslim countries (Iran, Sudan, Somalia, Syria, Libya and Yemen) and the admission of refugees into the United States. After federal judges in Hawaii and Maryland blocked the federal government from implementing the order, the Trump administration went to the Supreme Court, which on June 26 allowed the order to go into effect but prohibited the government from enforcing the order against individuals who have a genuine relationship with an institution or person in the United States.
The justices agreed to hear oral argument in the fall on the merits of the lower courts’ rulings putting the March 6 order on hold. But meanwhile, the dispute over the order has shifted to another question: Which travelers and refugees should be allowed to enter the United States under the court’s June 26 order? In guidance issued in late June, the federal government indicated that the spouses (as well as fiancés and fiancées), parents and children (including by marriage) and siblings of U.S. citizens and permanent residents would be eligible to apply for visas to come to the United States. That definition prompted Hawaii to go back to court, arguing that the Trump administration did not go far enough.
U.S. District Judge Derrick Watson agreed with the state. In a ruling issued last week, Watson rejected the government’s narrower definition and concluded that grandparents, grandchildren, aunts and uncles, nieces and nephews, cousins and siblings in law also have the kind of close family relationships that would allow a traveler from one of the six majority-Muslim countries to apply for a visa. Moreover, he added, the March 6 order would not apply to refugees for whom the federal government has entered into an agreement with a resettlement agency, because those refugees have a genuine relationship with a U.S. institution.
The federal government then returned to the Supreme Court, seeking to block Judge Watson’s most recent ruling from going into effect. In their response to the government’s filing, the state raised both substantive and procedural objections to last week’s motion. Describing the government’s argument that Watson’s order has “eviscerated” the Supreme Court’s June 26 ruling as “nonsense,” the state pointed out that even under the district judge’s more expansive reading of the June 26 ruling, the government will still be able to implement the March 6 executive order “against more than 85% of refugees” and can “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.”
Moreover, the state added, the government’s request to clarify the scope of the court’s June 26 order is “truly extraordinary” and (among other things) has no “basis in this Court’s settled procedures and precedents.” Instead, the state emphasized, any clarification should come from the lower courts rather than the Supreme Court.
Less than 12 hours after Hawaii filed its brief, the Trump administration pushed back with strong words of its own, telling the justices that Hawaii and the other challengers “seek to drain” the Supreme Court’s June 26 order “of meaning.” The federal government emphasized that under the challengers’ interpretation, the limits imposed on refugee admissions by the March 6 executive order would essentially be rendered ineffective, because they could not be implemented “as to virtually all refugee applicants who would have” otherwise entered the United States. And the government characterized the challengers’ position as to which family members should be allowed to enter the United States under the June 26 order as “a caricature of the standard this Court established”: The June 26 order indicated that the kinds of “close” relatives who are eligible to apply for visas should have relationships similar to those of the individual plaintiffs in these cases, such as a spouse or mother-in-law, but the challengers would go much further and allow all but “distant” relatives to enter the country.
The government was also sharply critical of the challengers’ suggestion that the justices should stay out of the dispute over their own June 26 order and instead allow the lower courts to weigh in first. It “makes no sense,” the government argued, for Hawaii to urge the Supreme Court not to act when the state itself was responsible for the emergency litigation to clarify the meaning of the justices’ June 26 order. The Supreme Court, the Trump administration emphasized, “is the only court that can provide definitive clarification” of what its June 26 order means. Moreover, the government added, waiting for the lower courts to act would “needlessly delay resolution of these issues and exacerbate the confusion and disruption already caused” by the district court’s ruling. At the very least, the government urged, the court should stay the district court’s ruling until the U.S. Court of Appeals for the 9th Circuit can review it.
Although the Supreme Court is officially on its summer recess, the justices could (and likely will) act soon on the government’s request.