Challengers to President Trump’s restrictions on immigrants from Mideast nations and limits on refugee arrivals accused the Administration on Thursday of continuing to defy the Supreme Court by insisting on more power to exclude foreign nationals than the Justices have given it.

In a new filing in a federal appeals court, the state of Hawaii and other challengers also argued that the Administration is wrongly claiming that the Supreme Court has already upheld the government’s power to exclude even refugees who currently have some formal ties to the United States. That is still an open question, the challengers’ lawyers contended in the new 53-page brief filed in the U.S. Court of Appeals for the Ninth Circuit. The document contended that the legal position being pursued now by government lawyers “simply represents the latest in [the Administration’s] continually shifting effort to effectuate the Muslim ban the President proposed 18 months ago” – as a presidential candidate.

The Ninth Circuit Court is conducting a new review of at least some aspects of the Trump executive order that sought to curb the entry of people from six Mideast nations with Muslim-majority populations and refugees from around the globe. The Circuit Court is doing so on orders from the Supreme Court. Although the Supreme Court has not yet made any final ruling on the legality of the controversial Trump order – a task it plans to take up in October, the Justices have twice issued preliminary rulings on how much of the presidential order can be enforced in the meantime.



Under actions the Justices took in June and July, the government is allowed temporarily to exclude any foreign national seeking to enter who has no relatives and no ties to any organization or business in this country, and any refugee whose only link to this country is a promise of a resettlement here by a refugee relief organization. But the Justices, by a divided vote, have not given the government even temporary permission to enforce a narrower interpretation of the kind of family ties that foreign travelers must have in the U.S. in order to qualify to travel here.

A request by the government to exclude such relatives as grandparents and grandchildren of U.S. residents was turned down by the Justices in the action in July. The assignment that the Supreme Court gave explicitly to the Ninth Circuit Court at that time was to take a new look at whether refugees who have a current promise of resettlement should be declared eligible to enter the U.S. despite the Trump order’s move to exclude them.

Until that is decided, the government has permission to continue to exclude them. Administration lawyers, however, began an effort a week ago in the Ninth Circuit Court not only to solidify the power to exclude refugees with such assurances, but also to gain anew the authority to narrow the kinds of family ties that would make a foreign traveler eligible to enter.



Resisting both of those requests, lawyers for the state of Hawaii and a Muslim cleric in Hawaii asked the Circuit Court to uphold an earlier order by a federal trial judge in Honolulu allowing refugees to enter if they have resettlement promises and allowing grandparents and other near-relatives to be included among those eligible to travel here from the Mideast nations. The new brief asserted that the Administration was significantly misinterpreting the temporary measures that the Supreme Court has taken, thus threatening to undermine the careful balancing that the challengers said the Justices had attempted to perform.

“Stymied in its attempt to impose an overt religious test on admission, thwarted in its efforts to mask that ban in hastily donned sheep’s clothing, and at last rebuffed in its request that the Supreme Court allow its policy to go into full effect anyway, the government has now settled on its newest policy of defiance,” the filing argued.

On the refugee issue that the Justices handed to the Ninth Circuit Court for review, the brief contended that government lawyers tried last week to claim that the Justices have already “confirmed” that policy. But that, the challengers said, is what the Justices explicitly left to the Circuit Court in the first instance. Under the schedule set by the Circuit Court, the government is allowed to file a reply brief next Wednesday. After that filing, the case could be ready for a decision by the Ninth Circuit Court panel, because it has said that it did not expect to hold a hearing after the briefs were in hand.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com, where this story first appeared.