The Supreme Court has ruled on the Trump administration’s Motion for Clarification and for a Stay of the Hawaii Order significantly scaling back implementation of Travel Order No. 2.

The Court denied the request for “clarification,” granted a stay of the Hawaii Order on refugees, and was silent (de facto denial) of a stay as to relatives:

The Government’s motion seeking clarification of our order of June 26, 2017, is denied. The District Court order modifying the preliminary injunction with respect to refugees covered by a formal assurance is stayed pending resolution of the Government’s appeal to the Court of Appeals for the Ninth Circuit. Justice Thomas, Justice Alito, and Justice Gorsuch would have stayed the District Court order in its entirety.

We covered the issues in these posts:

The short version is that after the Supreme Court substantially overruled the first Hawaii District Court and 9th Circuit injunctions against Travel Order No. 2, the Trump administration implemented new rules following the Supreme Court ruling. Most prominently, the Trump administration limited “close familial relations” (who would be exempted from the Travel Order under the Supreme Court ruling) to Parents, spouses, children, siblings, fiancés and sons- or daughters-in-law.

The Hawaii District Court, however, issued a second preliminary injunction expanding who was exempted to “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States”. The Hawaii court also ruled that mere contact between a refugee and a private U.S. refugee agency was sufficient in and of itself to constitute a bona fide connection to the U.S. so as to exempt such refugees from the Travel Order.

In the original Supreme Court ruling, the three dissenters (Thomas, Alito, Gorsuch) wanted the entire Travel Order upheld (the Hawaii injunction stayed in its entirety) and warned that there would be further litigation if that did not happen:

I agree with the Court that the preliminary injunctions entered in these cases should be stayed, although I would stay them in full…. Moreover, I fear that the Court’s remedy will prove unworkable. Today’s compromise will burden executive officials with the task of deciding—on peril of contempt— whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country. See ante, at 11–12. The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a “bona fide relationship,” who precisely has a “credible claim” to that relationship, and whether the claimed relationship was formed “simply to avoid §2(c)” of Executive Order No. 13780, ante, at 11, 12. And litigation of the factual and legal issues that are likely to arise will presumably be directed to the two District Courts whose initial orders in these cases this Court has now— unanimously—found sufficiently questionable to be stayed as to the vast majority of the people potentially affected.

That prediction proved prescient, as the case came back to the Supreme Court. The government sought Supreme Court intervention as to the second Hawaii injunction, arguing that these expansive categories ordered by the Hawaii court were contrary to the Supreme Court’s ruling and rendered the ruling language devoid of meaning. Here’s how the government laid out its case (emphasis added):

In two important respects, however, respondents pressed further in an effort to strip this Court’s stay of significant practical consequence. The district court adopted both of respondents’ arguments, and denied the government’s request for a stay pending

this Court’s review. The government therefore is left to seek this Court’s immediate intervention. First, for aliens abroad who seek admission as refugees, this Court held that the suspension in Section 6(a) of the Order and the annual cap in Section 6(b) “may not be enforced against an individual * * * who can credibly claim a bona fide relationship with a person or entity in the United States.” IRAP, slip op. 13. Respondents do not contend that the government has applied Sections 6(a) and 6(b) to refugees who themselves have developed actual, bona fide relationships with U.S. entities. Rather, respondents object that, for every refugee who is likely to enter the United States while Sections 6(a) and 6(b) are in effect, the government has contracted with a resettlement agency to provide assistance to the alien once he eventually arrives in the United States, and the alien has a qualifying bona fide relationship on this basis. Prior to the refugee’s arrival, however, the relationship is solely between the government and the agency, not between the agency and the refugee. Indeed, the agency typically has no contact with the refugee before his admission. Because the fact of an assurance does not itself create a relationship between a refugee and a resettlement agency, the government has not treated that fact alone as sufficient to trigger the injunctions. To do so (as the district court did) would render the refugee portion of this Court’s decision effectively meaningless. Second, for aliens abroad who seek a visa, this Court similarly held that the suspension in Section 2(c) of the Order may not be enforced against an individual with a credible claim of a bona fide relationship to a U.S. person or entity, including “a close familial relationship” with a U.S. individual. IRAP, slip op. 12 (emphasis added). In interpreting what degree of closeness is required, the government looked to the waiver provision of Section 3(c)(iv) of the Order, which allows waivers for aliens who seek “to visit or reside with a close family member (e.g., a spouse, child, or parent)” in the United States. Order § 3(c)(iv). That waiver provision in turn reflected the provisions of the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., governing eligibility for family-based immigrant visas, which are limited to spouses, children, parents, and siblings. In light of related INA provisions and this Court’s stay decision, the government has further interpreted the phrase “close familial relationship” to include fiancé(e)s and parents- and children-in-law. At respondents’ urging, however, the district court interpreted that phrase also to include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, and siblings-in-law. Again, that interpretation empties the Court’s decision of meaning, as it encompasses not just “close” family members, but virtually all family members. Treating all of these relationships as “close familial relationship[s]” reads the term “close” out of the Court’s decision. Moreover, by divorcing the Court’s language from its context — namely, the Order’s waiver provision and the immigration provisions on which it was based — the district court adopted an expansive definition untethered to relevant legislative enactments or Executive action.

The entire court rejected the concept of “clarification,” but once again, Thomas, Alito and Gorsuch were in the minority as to staying the lower court order. The majority stayed only part (as to refugees), but not the absurd expansive definition of close family used by the District Court.

There already was an appeal and motion for a stay to the 9th Circuit, which we covered in a prior post. The briefing schedule extend out through the end of September. Expect the government to go back to the 9th Circuit and seek an expedited ruling.



