All three judges on a federal appeals court displayed obvious skepticism at a Monday hearing about the Trump Administration’s attempt to defend both of the restrictions it wants to place on U.S. entry by foreign nationals from Mideast nations and on refugees from any foreign lands. And two of the judges suggested that an Administration lawyer was reading words into a Supreme Court order on the controversy that were not there.
The panel of the U.S. Court of Appeals for the Ninth Circuit held the hearing as it carries out an assignment given it by the Supreme Court – that is, to sort out which parts of President Trump’s new immigration limits can be enforced during the time before the Justices take up the question of whether those limits are legal or not. The Justices are scheduled to do that in their next term, opening in October.
Under a brief order the Justices issued on July 19, the Administration does not have permission for the time being to exclude overseas grandparents or other close family members of individuals living in the U.S., but it can temporarily bar the entry of refugees whose only assurance that they could come to the U.S. is an agreement by a relief agency to resettle them here.
But it is the Ninth Circuit Court’s task, at this point, to review an Administration request to start excluding all foreign relatives from six Mideast nations except members of a U.S. resident’s “immediate family,” and a separate Administration plea to continue to bar refugees who have only a promise of resettlement.
In the Monday hearing, which lasted just under 40 minutes, a Justice Department attorney – Hashim M. Mooppan – almost constantly faced tough questioning by the three Circuit judges, while a lawyer for the challengers to the Trump order – Colleen Roh Sinzdak – was pressed very seldom, and got a number of obvious assists from the bench in friendly questions.
The toughest questions to the government lawyer came from Circuit Judge Ronald M. Gould, who at one point wondered in “what universe” had the Administration found the idea that grandparents, aunts and uncles would not qualify as “close family.”
And, when his panel colleague, Circuit Judge Richard A. Paez asked where in the Supreme Court’s July 19 order did Mooppan find a requirement that refugees had to have a “direct relationship” with the U.S., Judge Gould quickly remarked: “The answer is nowhere.”
Judge Paez also pressed the government lawyer repeatedly, suggesting that Mooppan was arguing as if refugees were just “some random person out there” seeking to enter the U.S., and not those for whom entry arrangements had been made for their benefit.
Mooppan, repeating an argument the Administration has made all along about the scope of the Supreme Court’s July 19 order, contended that the fact that the Justices did allow a temporary bar on entry by refugees with only a settlement promise showed that that issue was already settled in the government’s favor.
Both Gould and Paez suggested that the Administration was arguing that the Supreme Court had limited who among foreign relatives would be allowed to enter by requiring that they be part of “immediate family,” when those words had appeared nowhere in the July 19 order by the Justices.
Judge Gould also suggested, several times, that the government was reading the Justices order too legalistically, when in fact the Justices had written the order to try to be more “equitable” about who could and could not be barred from entry.
The third member of the Circuit panel, Senior Circuit Judge Michael Daly Hawkins, was not as active in the hearing as his two colleagues were, but he did ask pointedly whether the Administration was arguing that the Supreme Court had said that “refugees don’t count” among those who should be allowed to enter despite the Trump order. And the judge said explicitly that refugees who have a resettlement promise from a relief agency have, in fact, been approved for a relationship with the U.S.
Attorney Sinzdak, challenging the Trump order’s two restrictions as the lawyer for the state of Hawaii and Muslims in the state, accused the Administration’s legal team of “importing new standards” into what the Supreme Court meant in its July order, relying upon the government’s “own inventions.”
What the Court had intended, she argued, was that entry to the U.S. by foreign nationals and refugees should be decided according to what is “equitable and practical,” and that could be determined by looking to prior rulings by the Justices on who constitutes members of a close family.
Judge Hawkins was more active in questioning Sinzdak than his colleagues were, but his questions to her seemed focused more on broader issues of how much authority the government has under immigration law to limit refugees’ arrival, and whether the government has power to treat immigrants and refugees differently.
Hawaii’s lawyer used her answers to put the focus back on what the Supreme Court had done on July 19, stressing the differing ways that she and Mooppan had read that order.
No matter which side wins in the Ninth Circuit Court, the other side is likely to take the question of interim enforcement of the Trump order back to the Supreme Court. But the time available for the Justices to rule again on that interim question is getting shorter, especially if the Ninth Circuit Court takes some time to issue its ruling, because the broader question of whether President Trump acted illegally is scheduled for a hearing on October 10.