Lawyers for the state of Hawaii, arguing that the Trump Administration is “imposing a new Muslim ban wholly divorced from any national security rationale,” urged a federal appeals court on Friday to take steps to ensure that more foreign nationals and refugees get to enter the United States in coming weeks and months.
In a swiftly drafted motion filed at the U.S. Court of Appeals for the Ninth Circuit, the challengers contended that a federal judge in Hawaii was wrong in refusing to put a stop to the new limitations on immigration from six Mideast nations and on immigration of refugees, put into effect three days after the Supreme Court on June 26 gave limited permission to enforce the new policy.
“For over a week, the government has been ignoring the dictates of the judicial branch,” the motion argued.
The challengers proposed that the appeals court take one of three steps, and to act quickly: first, the appeals court itself should order a relaxation of the new immigration restrictions and put the version that the government has implemented on hold until the court decides whether the limits are legally justified; or, second, order the Hawaii trial judge himself to clarify the Supreme Court order permitting some enforcement of the new restrictions, so that it opens entry to more family relationships and to more refugees who have arrangements to come to the U.S. or to have legal aid; or, third, order the Hawaii judge to decide, in the first instance, the challengers’ plea for the relaxation of the new curbs on entry.
U.S. District Judge Derrick K. Watson of Honolulu had refused on Thursday to clarify the scope of the Supreme Court’s June 26 ruling allowing some parts of the Trump presidential order to go into effect. The judge said he lacked the authority to modify what the Supreme Court itself had chosen to do. He suggested that the dispute over the new restrictions be taken directly to the Supreme Court.
Hawaii’s lawyers, in the new filing Friday in the Ninth Circuit Court, contended that the proper legal path was to contest Judge Watson’s refusal to clarify in the appeals court, not to try to get the dispute directly before the Supreme Court now. It is a common practice, the new filing argued, for lower courts to fill in the gaps that the Supreme Court may have left when it issues a decision to resolve a case before it.
The lawyers suggested that the Ninth Circuit Court assign their new challenge to the same three-judge panel that had upheld unanimously an earlier order by the Hawaii judge blocking enforcement of the key parts of the Trump executive order as issued on March 6. That was one of the two cases that the Supreme Court agreed last month to review, at its next term, even as it gave the Administration some limited freedom to put some of its new restrictions into operation.
As the new round in the controversy reached the Ninth Circuit Court on Friday, there are two core disputes between, on one side, the Hawaii challengers and their supporters (15 states and Washington, D.C.) and, on the other side, the federal government. First is the definition of what kinds of family ties with U.S. relatives must exist in order for a foreign national from the six Mideast nations or a refugee from anywhere in the world to be able to enter the U.S., and thus avoid the Administration’s new restriction on entry. Second is the kind of relationship that a refugee must have established with a refugee resettlement organization or with a law firm or legal advocacy group in the U.S., in order to avoid the new restriction on entry.
The challengers want significant relaxations in both categories, the government wants no relaxation at all. The two sides are far apart, not only in their interpretations of what the Supreme Court had intended by its ruling on the controversy, but also in their arguments about what current federal immigration law has to say about who may enter the U.S. from abroad in order to be with relatives here.
The next step in the process is for the Ninth Circuit Court to set a schedule for the filing of the government’s formal answer to Hawaii’s new challenge, and then for the filing of a reply brief from Hawaii.
Depending upon what the Ninth Circuit Court chooses to do with the new challenge, it appears likely that the new dispute will, sooner rather than later, go to the Supreme Court. While the Justices are in their summer recess, they can be reached to act on emergency matters that arise while they are out of session.
Until the Ninth Circuit Court takes some action, the lawyers for Hawaii noted in their new filing, the government has indicated it will continue to enforce its narrower view of who is entitled to enter the country as an immigrant or as a refugee.