Hawaii urges justices to deny motion for clarification on travel ban

Hawaii urges justices to deny motion for clarification on travel banThe 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 […]

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Hawaii urges justices to deny motion for clarification on travel ban

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 raises 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 points 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 adds, 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 emphasizes, any clarification should come from the lower courts rather than the Supreme Court.

When the justices directed the state to file a response to the federal government’s motion, they did not mention any opportunity for the Trump administration to file a reply to the state’s brief. With Hawaii’s brief now filed, this means that the justices could act quickly on the government’s request.

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