Dispute over travel ban could return to Supreme Court (UPDATED)
on Jul 7, 2017 at 1:38 pm
(UPDATED: On Friday the challengers filed a brief in which they asked the U.S. Court of Appeals for the 9th Circuit to step in and block the federal government from enforcing the March 6 order against the additional relatives – such as grandparents and grandchildren – who they believe should be allowed to enter the United States under the Supreme Court’s June 26 order. However, the 9th Circuit quickly denied the challengers’ request, explaining that it lacked the authority to act on it.)
Late last month, the Supreme Court granted the Trump administration’s request to review two lower-court rulings that had blocked the implementation of the March 6 executive order – often referred to as the “travel ban” – that sought to impose a freeze on visas for travelers from six Muslim-majority countries. The justices allowed part of the ban to go into effect until they can hear oral argument in October and decide the case. But litigation over the travel ban could be back at the Supreme Court sooner than generally expected, as the plaintiffs challenging the ban seek additional guidance from the justices about exactly should be allowed to enter the United States under the Supreme Court’s June 26 order.
Citing national security concerns, the March 6 executive order had suspended new visas for travelers from six Muslim-majority countries – Iran, Syria, Libya, Somalia, Sudan and Yemen – as well as the entry of refugees. Two different lower courts had barred the Trump administration from implementing the order at all, but the justices forged a temporary compromise: They prohibited the government from enforcing the ban against any “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States,” but they allowed the government to enforce it against travelers who lack such a relationship. The court made clear that a “close” relationship was required, and it provided some examples, such as a wife or a mother-in-law, but it did not provide an exhaustive list.
Shortly after the court handed down its order, the federal government issued guidance that outlined what qualifies as a “close” family relationship for purposes of the ban: The definition included parents, spouses, fiances, children, adult sons or daughters, sons- and daughters-in-law, siblings, stepparents and step-children, but it did not include a second group of relatives, such as grandparents, grandchildren, nieces, nephews, aunts, uncles, cousins or brothers- or sisters-in-law.
The plaintiffs in one of the two challenges to the travel ban now before the Supreme Court – the state of Hawaii and a U.S. citizen who is Muslim and who wants his Syrian mother-in-law to be able to visit the United States – returned to a federal district court in Hawaii. They asked the district court to clarify that the second group of relatives should also be able to enter the United States, as well as refugees with a “bona fide relationship with a person or entity in the United States.” But the district court declined to do so. Explaining that the source of the dispute between the two sides was “the meaning and intent of words” in the Supreme Court’s June 26 order, U.S. District Judge Derrick Watson concluded that the clarifications sought by the plaintiffs “should be more appropriately sought in the Supreme Court.”
The Hawaii plaintiffs’ next stop was the U.S. Court of Appeals for the 9th Circuit, where late last night they filed a notice of their intent to appeal Judge Watson’s order. It is not clear how quickly the appeal will proceed in that court, but if the judges there reach the same conclusion as Judge Watson, the dispute could be back at the Supreme Court relatively soon.
(Many thanks to Marty Lederman for alerting us to the recent developments and providing links to the filings. Thanks are also due to Blake Stafford for alerting us to the most recent developments in the 9th Circuit.)