UPDATED Friday 6:38 a.m. Lawyers for Hawaii opted to take their plea next to the U.S. Court of Appeals for the Ninth Circuit, following the regular route of appeal from a district court ruling rather than attempting to go directly to the Supreme Court. It will now be up to the appeals court to decide whether that was the right path. The action came late Thursday with the filing of a formal notice of appeal in Judge Watson’s court.
A federal judge in Hawaii ruled on Thursday afternoon that he has no power to cut back on the scope of the Supreme Court order last week allowing the Trump Administration to enforce, in part, its new restrictions on immigration of foreign nationals and refugees.
In a six-page opinion, District Judge Derrick K. Watson of Honolulu turned down a request by Hawaii and a group of 15 other states and Washington, D.C., for him to clarify what the Supreme Court meant when it ruled on June 26 on the heated controversy over President Trump’s March 6 executive order.
“It is evident,” the judge wrote, “that the parties quarrel over the meaning and intent of words and phrases authored not by this court, but by the Supreme Court….[T]he clarification…that the parties seek should be more appropriately sought in the Supreme Court.”
However, the judge, in a final footnote, added: “Of course, if the Supreme Court wishes for this court to decide the merits raised by [the challengers’] motion in the first instance, this court will promptly do so.”
It was an earlier order written by Judge Watson that had blocked enforcement of the key parts of the presidential order’s suspension of entry of foreign nationals from six Muslim-majority Mideast nations and the entry of refugees from anywhere in the world. But, acting on an appeal by the Administration, the Supreme Court partially lifted the Watson order, clearing the way for partial enforcement to begin, as it did on June 29 – three days after the Justices had ruled.
The Administration’s lawyers had indicated earlier this week that, if Judge Watson did anything to reduce the scope of its enforcement plan, it would go to the Supreme Court. And lawyers for the state of Hawaii, which has been leading this particular challenge, had said that they, too, would seek swift review in a higher court if the judge refused to scale down the Trump enforcement.
Presumably, both sides could now, separately, file a motion seeking clarification of the Justices’ final order from June 26. Or, Hawaii and its allies could pursue such a maneuver, which the Administration could simply oppose, since no action would leave the Justices’ ruling as is. In that ruling, the government was required to allow entry by any foreign national from the designated Mideast nations if that individual had “a credible claim of a bona fide relationship with a person or entity in the United States.”
The Justices did not spell out precisely what kind of relationship had to be established with a person in this country, but it provided some guidance when the claimed relationship would be with a U.S, “entity.” In that situation, the ruling said, the “relationship must be formal, documented and formed in the ordinary course.”
As to refugees seeking to come to this country, the Justices said the government could not enforce the suspension of entry as to one who had “a bona fide relationship” with an American individual or entity.
When the Trump Administration reacted to the Supreme Court ruling by beginning to enforce what the Supreme Court allowed, it concluded that it was only required to permit the entry – based on family ties – of a parent (including in-laws), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling or half-sibling, and “step relationships.”
These family members, the government decided, would not be allowed to enter: grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, sisters-in-law, and any “extended” family members.
As to refugees seeking entry, the government decided it would not be sufficient for that status simply if a refugee had signed up with a resettlement agency in the U.S. or had made an arrangement for legal assistance from a law firm or legal advocacy group. It also gave consular officers discretion to decide who would qualify as a refugee, with any doubt decided against entry.
The state of Hawaii and an Islamic imam in that state quickly returned to Judge Watson in Honolulu, arguing that all of the exclusions of family members and the narrow interpretation of refugee access that the government had put into place violated the Supreme Court’s decision. Soon joined in their challenge by 15 other states and Washington, D.C., they asked the judge to issue a new “injunction” assuring that their view would be carried out.
After all of the legal papers had been filed with the Honolulu court by early Thursday afternoon, Judge Watson took little time to conclude that the matter was out of his hands. He noted that the phrases the Supreme Court had chosen in listing the persons who could not be barred was not included, in those terms, in the judge’s own earlier order against enforcement.
The judge also noted that, in announcing its decision, the Supreme Court had indicated that it was exercising its own, independent judgment about how far government enforcement could go.
The judge said that, ordinarily, an application to modify a federal court’s order must be made to the court that had written and issued that order. He added that, where the challenges do not “derive from this court’s orders, the court sees no reason why the starting point had to originate here, or even why it made sense to do so.”
What is being explicitly challenged in his court, Judge Watson wrote, is the federal government’s “interpretation of the Supreme Court’s” ruling.
In the ordinary decision coming out of the Supreme Court, the Justices sometimes leave issues or interpretations open, and it is commonly understood that any such gaps will be filled in when the case returns to a lower court for the Justices’ ruling to be carried out. It is very rare for the Justices to be asked directly to specify what they meant when questions arise about the language it has used in an opinion. In fact, it is not clear where, in the court’s rules of procedure, there is a provision allowing a motion to clarify or modify. It is conceivable the Justices might be asked to rehear the enforcement issue, but that, too, may not be contemplated by its rules.
If one or both sides in the controversy do move now to the Supreme Court, the Justices presumably will make a decision whether to take on the assignment of clarifying its decision, or let Judge Watson handle that task in the first instance.
One complication as the next maneuver unfolds is the fact that the Supreme Court has not actually decided whether President Trump had the legal authority to issue the executive order in the form that he did. It went only so far as to decide what enforcement could mean, pending a ruling on the legality of the executive order, to be taken up at the Justices’ next term, in the opening month of the term – October.