UPDATED: Saturday 7:14 a.m. Acting promptly on the Ninth Circuit Court’s implied suggestion for the next move, Hawaii’s lawyers early Saturday asked the judge in Honolulu to issue a new order narrowing what the Trump Administration may do to exclude foreign nationals and refugees from the U.S. They asked the judge to rule swiftly, without holding a hearing, arguing that the Administration is engaging in “brazen violations” of orders by the judge and by the Supreme Court.
For the second day in a row, a federal court has turned aside an attempt by lawyers for the state of Hawaii to scale back the Trump Administration’s new restrictions on immigration of foreign nationals and refugees. But, for the second day in a row, a federal court also went on to tell Hawaii’s attorneys that they could try something else.
A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, acting within hours of receiving an appeal by Hawaii, ruled that it had no jurisdiction to hear the appeal. It added, though,that the state still has another option short of attempting to go directly to the Supreme Court: the state, it said, can return to a federal trial court in Honolulu and, this time, ask for a court order (an “injunction”) to pare down the Administration’s new limits on arrivals from six Mideast nations with majority populations, and arrivals of refugees from anywhere in the world.
That is not what Hawaii did earlier in the Honolulu court; instead, it had asked U.S. District Judge Derrick K. Watson to “clarify” the Supreme Court’s decision on June 26 that had allowed the Administration to begin enforcing a limited form of its new exclusion of foreigner travelers. The Trump Administration has interpreted the Justices’ decision last month in a narrow way, concluding that it still has the authority to exclude a sizable number of relatives of U.S. citizens and a significant number of refugees who have already made arrangements to reach the U.S.
Watson refused to give his own interpretation of the Supreme Court’s action. But he also suggested that Hawaii could take its plea directly to the Supreme Court. Only the Justices can interpret what they meant, he declared. After the Watson rejection came down on Thursday, Hawaii’s lawyers did not take the suggestion to go to the Supreme Court, but instead rushed to the Ninth Circuit Court, asking that court to issue an order to reduce the scope of the Administration’s implementing actions. (This maneuver by Hawaii is explained in the post, just below this one.)
Before the end of the afternoon Friday, a three-judge Ninth Circuit Court panel found a lack of jurisdiction. What Judge Watson had done, it said, was not a final decision subject to appeal, and did not fall within any of the other areas where a non-final decision can be appealed. It also refused to issue a direct order to Judge Watson to rule as Hawaii had asked.
Still, the panel ended its opinion by pointing out that Judge Watson does have the authority “to interpret and enforce” what the Supreme Court had decided, and also has the authority to issue an injunction against a violation of what the Justices had done. (Hawaii has maintained in its new challenges to the Trump Administration that the government has “flagrantly violated” the Justices’ ruling by excluding categories of foreign nationals that the Supreme Court had said could not be excluded. What the government has done, those lawyers claimed, was to impose “a new Muslim ban.”)
The panel noted that an injunction was not the kind of order that Hawaii had asked Judge Watson to issue; the panel thus left the rather obvious hint that, if Hawaii wants to carry on its fight, it should now try for an injunction. It said it did not fault the trial judge for failing to issue an injunction, since he had not been asked for that kind of order.
In essence, the panel’s decision reverses Judge Watson’s conclusion that he has no power to interpret what the Supreme Court has done, and no power to order obedience to the interpretation he may make of that ruling. That part of the decision, of course, went Hawaii’s way.
Because Hawaii’s lawyers have been energetic in pursuing this, as well as an earlier, challenge to President Trump’s immigration executive order, they may well take the Circuit Court panel’s implied invitation and return to Honolulu.