The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier tonight, federal District Court Judge Derrick Watson of the District of Hawaii issued an injunction against key parts of the Trump administration's implementation of the the president's travel ban executive order, barring citizens of six Muslim majority nations from entering the United States for 90 days, and all refugees for 120 days. The judge's ruling prevents application of the travel ban against "grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States." It also protects refugees who have an established relationship with American refugee sponsorship organizations that have given them a "formal assurance" of assistance with resettlement in the United States.
Earlier this year, two federal appellate courts issued preliminary injunctions blocking implementation of the order: the Fourth Circuit because it was likely motivated by unconstitutional discrimination against Muslims; the Ninth Circuit because it determined that the president had exceeded the statutory authority granted to him by Congress. On June 26, the Supreme Court partly lifted the injunctions, but retained them with respect to "foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States." That includes people who have a "close familial relationship" with a US resident and refugees who had a bona fide relationship with an entity in the US.
The Trump administration decided that such relationships as being the grandparent, uncle, or aunt of a US resident do not count as a "close familial relationship," even though the Supreme Court specifically noted that being a mother-in-law of a US resident is sufficient. The administration also excluded refugees with formal assurances of resettlement assistance from American sponsorship organizations.
The state of Hawaii (one of the plaintiffs in the travel ban case) filed a motion challenging both of these determinations. After initially refusing to interpret and enforce the Supreme Court's ruling and getting instructions from the Ninth Circuit appellate court that he does in fact have the authority to "interpret and enforce" that decision, Judge Watson has now ruled against the administration on both issues. For reasons I have spelled out previously, Trump's position on both issues is extremely weak. Judge Watson's opinion emphasizes most of the same weaknesses as I and other commentators did.
On the familial relationship question, he explains that the administration's position simply makes no sense:
[W]hen appropriately considered in the context of the June 26 order, the Government's narrowly defined list finds no support in the careful language of the Supreme Court or even in the immigration statutes on which the Government relies….
Defendants point to nothing in the Supreme Court's order that supports their truncated reading. In fact, the Supreme Court specifically included a mother-in-law within its definition of "close family" despite the exclusion of mothers-in-law from the statutes relied upon by the Government in crafting its guidance….
Equally problematic, the Government's definition represents the antithesis of common sense. Common sense, for instance, dictates that close family members be defined to include grandparents. Indeed, grandparents are the epitome of close family members. The Government's definition excludes them. That simply cannot be.
This strikes me as entirely correct, indeed very obviously so. The administration's attempt to deny it seems an example of bad faith, incompetence, or some combination of both.
Judge Watson also noted the serious flaws in the administration's approach to the refugee question. The Supreme Court ruled that refugees and others who have established relationships with US "entities" are protected against the travel ban so long as those connections "formal, documented, and formed in the ordinary course," and not as an attempt to circumvent the order. As Judge Watson points out, refugees with formal assurances from resettlement organizations fit these criteria perfectly:
An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court's touchstones: it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, including compensation, it is issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security, and it is issued in the ordinary course, and historically has been for decades… Bona fide does not get any more bona fide than that.
Judge Watson also enjoined exclusion participants in the US Refugee Admissions Program covered by the Lautenberg Program for members of persecuted religious, ethnic, and other minorities in the former Soviet Union, Iran, and elsewhere. On the other hand, he refused to issue injunctions categorically protecting refugees who are clients of American legal assistance programs, or Central American refugee minors with relatives in the United States. However, as he notes, many of the people in these two categories are likely to be protected under the broader definition of "close family" adopted elsewhere in his ruling, or because the clients do in fact have a sufficiently close relationship with an American organization. He also notes that the administration has not so far adopted any rules related to legal services clients, so it is not clear which of them they are going to try to exclude.
Overall, this decision is a clear victory for Hawaii on the major disputed issues. The Trump administration may appeal it to the Ninth Circuit Court of Appeals. But I would be surprised if the appellate court ruled much differently than Judge Watson did.
UPDATE: Attorney General Jeff Sessions has issued a statement indicating that the administration plans to take this issue directly to the Supreme Court.