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The Facts —
- Late on Tuesday, the Supreme Court responded to the Trump administration’s request to block part of a lower court ruling regarding the so-called “travel ban” by “staying,” or halting, the part of that ruling that sought to exempt — and thereby allow into the country — refugees who already had a “formal assurance” of entry into the United States.
- Last week’s lower court decision — which the Supreme court stopped — would have “eased the refugee ban and allowed up to 24,000 refugees to enter the country before the end of October,” according to the Associated Press.
- The Supreme Court’s one-sentence order states:
“… the issuance of the mandate of the United States Court of Appeals for the Ninth Circuit… is stayed with respect to refugees covered by a formal assurance, pending further order of this Court.”
- The Supreme Court will examine the constitutionality of the “travel ban” next month.
The Context —
- The 9th Circuit Court of Appeals ruled on 7 September that the Trump administration had taken too narrow of a view in defining what the Supreme Court called a “bona fide relationship,” effectively deciding that the definition should include extended family and some refugees.
- The court said the Trump administration could not prevent “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States” from entering the country under the executive order.
- The ruling specified that refugee “[r]esettlement agencies will face concrete harms and burdens if refugees with formal assurances are not admitted.”
- Then, on 11 September, Supreme Court Justice Anthony Kennedy temporarily halted the 9th Circuit’s ruling, deciding that the Trump administration’s request to overturn that ruling should be heard.
- The State of Hawaii asked the Supreme Court on Tuesday morning, 12 September, to reject the Trump administration’s request, which would have limited the scope of the president’s “travel ban.”
- The “travel ban” refers to EO 13780 (“EO2”) — Trump’s second attempt at barring the entry of persons from six countries — which was issued after a preceding executive order (EO 13769) was met with protests at airports across the country and blocked by courts eight days later.
- The Supreme Court handed down a revised version of the “ban” on 26 June, writing that EO2 could bar entry only to “foreign nationals who lack any bona fide relationship with a person or entity in the United States.” The Court did not define “bona fide” relationships.
- Hawaii asked the high court on Tuesday to avoid intervention in the lower court decision on the ban’s scope, reminding the Supreme Court that it’s scheduled to examine the core constitutional questions of the “travel ban” next month.
- Hawaii also argued that the “lower courts” — meaning the 9th Circuit and federal district courts and “not [the Supreme]… Court” — were “best qualified to deal with the flinty, intractable realities of day-to-day implementation of the Court’s constitutional commands.”
- Hawaii wrote Tuesday:
“The lower courts have simply applied this Court’s standard [referring to the Supreme Court’s ‘bona fide’ qualifier] to protect vulnerable refugees and the American entities that have been eagerly preparing to welcome them to our shores… The Government entirely ignores the serious harms to respondents [facilitated by the ban]… Hawaii is harmed when refugees with formal assurances are excluded; the State has a policy of assisting in the resettlement of refugees and cannot implement that policy if refugees with formal assurances are unable to enter the country… The Government’s motion [to block the 9th Circuit ruling] should be denied.”
- Steve Vladeck, CNN Supreme Court analyst and professor of law at the University of Texas School of Law, wrote:
“Although it may be tempting to see the order as a harbinger of how the court is likely to rule on the merits, it’s better understood as a very modest procedural step to stabilize the full scope of the injunctions against the travel ban over the next four weeks.”
- According to Mark Sherman at the Associated Press, White House Press Secretary Sarah Sanders said late Tuesday:
“We are pleased that the Supreme Court has allowed key components of the order to remain in effect. We will continue to vigorously defend the order leading up to next month’s oral argument in the Supreme Court.”
Christopher Putney contributed to this report.