Trump Team Seeks to Salvage Travel Ban After Judge Limits Scope
Top Court said that it will hear arguments on travel ban after its summer break.
(Bloomberg) -- The Trump administration embarked on a multi-court appeals process to salvage full enforcement of the president’s travel ban less than a day after a Hawaii federal court ruled to limit the scope of the executive order.
Attorney General Jeff Sessions intends to appeal Hawaii Judge Derrick Watson’s ruling to the U.S. Supreme Court, claiming the judge based his order on his own political preferences. That order defies both presidential privilege and the Supreme Court “in a time of grave threats,” Sessions said in a written statement.
The top court has said it will hear arguments on the travel ban during the term that starts in October, after its summer break.
“The Supreme Court has had to correct this lower court once, and we will now reluctantly return directly to the Supreme Court to again vindicate the rule of law and the executive branch’s duty to protect the nation,” Sessions said. “Once again, we are faced with a situation in which a single federal district court has undertaken by a nationwide injunction to micromanage decisions of the co-equal executive branch related to our national security.”
Minutes after Sessions issued his statement, the Justice Department informed Watson’s court that it would also appeal his ruling to the Ninth Circuit Court of Appeals.
Legal Path
A week ago, that same federal appeals court denied Hawaii’s request for clarification on the scope of the travel ban, citing lack of jurisdiction. At the same time, the three-judge panel advised Hawaii Attorney General Doug Chin on a legal path that would prompt Watson to consider the case.
Watson’s ruling late Thursday has re-opened doors -- at least temporarily -- to prospective visitors from six mostly Muslim countries and refugees who have links people in the U.S. and its resettlement agencies.
Watson had already stopped two previous versions of the president’s executive order from being enforced.
This time, he was reviewing the version issued after the Supreme Court said only people with “bona fide” ties to the U.S. could gain entry to the country. Watson found the State Department’s definition was too limited, and ordered the government to both expand who qualifies as family and include refugees who have secured the support of a U.S. group.
The Justice Department, which urged Watson to defer to the Supreme Court, has defended its chosen definition of “close family ties,” saying it both follows the Supreme Court’s June 26 filing and is consistent with the Immigration and Nationality Act. The administration’s definition of legitimate family ties to the U.S. excludes grandparents, aunts, uncles and others.
‘Close Family’
“In sum, the government’s definition of ‘close familial relationship’ is not only not compelled by the Supreme Court’s June 26 decision, but contradicts it,” Watson stated in his written order. “Equally problematic, the government’s definition represents the antithesis of common sense. Common sense, for instance, dictates that close family members be defined to include grandparents.”
The order directs Secretary of Homeland Security John Kelly and Secretary of State Rex Tillerson to modify enforcement nationwide.
Chin, a Democrat who filed the case, said he would continue to prepare for a hearing before the Supreme Court.
“The federal court today makes clear that the U.S. government may not ignore the scope of the partial travel ban as it sees fit,” Chin said in an emailed statement. “Family members have been separated and real people have suffered enough. Courts have found that this executive order has no basis in stopping terrorism and is just a pretext for illegal and unconstitutional discrimination.”
October Review
The Supreme Court said it will hear the administration’s appeal of lower-court orders blocking the ban from taking effect in its next session. Meanwhile, the court allowed the restrictions to take effect, with caveats, five months after the initial lawsuits challenging the president’s original order.
Because of the temporary nature of the 90-day ban, it isn’t clear exactly what will be left for the justices to decide in October. One possibility is that Trump could issue a new executive order once officials complete their review of vetting procedures for immigrants.
When the nine-member Supreme Court partially revived the travel ban on June 26, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have let the entire ban take effect immediately. Thomas warned that the definition of bona fide relationships would open the door to a “flood of litigation” as U.S. customs and border officials wrestle with whether travelers from the six countries have sufficient ties.
The case is State of Hawaii v. Trump, 17-cv-00050, U.S. District Court, District of Hawaii (Honolulu).
--With assistance from Andrew Harris
To contact the reporter on this story: Kartikay Mehrotra in San Francisco at kmehrotra2@bloomberg.net.
To contact the editors responsible for this story: Elizabeth Wollman at ewollman@bloomberg.net, Paul Cox