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Federal government asks Supreme Court to clarify order in travel ban litigation (UPDATED)

(UPDATE: The Supreme Court has ordered the challengers to respond to the government’s motion for clarification by 12 p.m. on Tuesday, July 18.)

The battle over President Donald Trump’s March 6 executive order, often referred to as the “travel ban,” returned to the Supreme Court on Friday night, as the federal government asked the justices to clarify exactly who should be allowed to enter the United States under the order. This week’s ruling by a federal judge in Hawaii, the Trump administration complained, interpreted a June 26 order by the Supreme Court, allowing the government to implement the March 6 order, so expansively that it effectively read any limits out of the June 26 order. The Supreme Court therefore should step in, the government told the justices, because “the correct interpretation” of the justices’ order “is a legal question that only this Court can authoritatively resolve.”

The Friday night filing was just the latest round in the dispute over the March 6 order, which imposed a freeze on new visas for travelers from six predominantly Muslim countries (Iran, Libya, Syria, Sudan, Yemen and Somalia) and temporarily suspended the admission of refugees into the United States. In June, the Trump administration asked the Supreme Court to weigh in after federal courts in Hawaii and Maryland barred the government from implementing the order. On June 26, the justices agreed to do so: In an unsigned order, the justices allowed the order to go into effect but barred the Trump administration from enforcing the ban with respect to individuals who have a “credible claim” of a genuine relationship with an individual or institution in the United States.

Within a few days of the Supreme Court’s June 26 order, the federal government issued guidance on the kinds of “close” family relationships that would allow travelers from the countries affected by the ban to seek visas. The government’s definition included spouses (and fiancés or fiancées), children and parents (including by marriage) and siblings, but did not include grandparents, grandchildren, aunts and uncles, nieces and nephews, cousins or siblings-in-law.

The challengers in the Hawaii case went back to court, asking U.S. District Judge Derrick Watson to clarify that the second group of relatives also qualified as “close” family relationships for purposes of the Supreme Court’s June 26 order. Judge Watson initially declined to do so, but – on appeal – the U.S. Court of Appeals for the 9th Circuit suggested that he had the authority to enforce or modify an existing order blocking the implementation of the ban. When the challengers returned to his court, Judge Watson did exactly that, adopting an expanded definition of “close” that included the second group of relatives. He also ruled that, for purposes of the June 26 order, the ban would not apply to refugees for whom the federal government has entered into an agreement with a resettlement agency, because those refugees have the kind of genuine relationship with a U.S. institution that the justices envisioned.

On Friday the Trump administration asked the Supreme Court to clarify that Judge Watson’s ruling goes beyond the scope of its June 26 order and to block the ruling from going into effect. The district court’s ruling on refugees, the government argued, misses the point because the government enters into contracts with resettlement agencies to help refugees after they arrive in the United States. But until they arrive in the United States, the government explained, the agency does not have a relationship (and often does not have any contact whatsoever) with the refugee; the only relationship is between the government and the agency. Therefore, the government concluded, the link between the refugee and the resettlement agency is too indirect to constitute the kind of genuine relationship required by the justices’ June 26 order.

Judge Watson’s ruling is also flawed, the government contended, insofar as it adopted a “boundless conception of ‘close family’ that essentially eliminates the ‘close’ requirement by covering virtually every conceivable familial connection.” The government’s more limited definition of “close” relationships, it argued, is grounded firmly in federal immigration law, and in particular the provisions governing which U.S. citizens and permanent residents can seek an immigrant visa for a family member living abroad.

The justices could grant the government’s request for a temporary stay or they could ask the challengers to respond; either way, they are likely to act quickly.

Recommended Citation: Amy Howe, Federal government asks Supreme Court to clarify order in travel ban litigation (UPDATED), SCOTUSblog (Jul. 15, 2017, 12:18 AM),