Taking the constitutional controversy over immigration restrictions back to the Supreme Court , the Trump Administration on Friday night asked the Justices’ permission to keep intact its current policy on foreign nationals and refugees seeking entry. An order by a federal judge in Hawaii relaxing those restrictions should be swiftly overturned, the new document argued.
“At this point, this court’s intervention is both necessary and warranted,” the filing asserted. “Only this court can definitively settle whether the government’s reasonable implementation” of what the Justices had decided on June 26 “is consistent with” that ruling.
The filing laid before the Justices these specific requests:
First, immediately clarify the June 26 decision to make clear that the government can limit entry to the categories it has been using since it started enforcing President Trump’s executive order on June 29. That would limit who among relatives may qualify as part of a family of someone in America they wish to visit, and bar the entry of any refugee whose only claim to a right to enter the U.S. is based on a promise by a refugee relief organization to resettle that person.
Second, if the Justices are not ready to issue that clarification right away, then treat the new filing as a request to review — and then overturn — the order by U.S. District Judge Derrick K. Watson’s relaxation of the Administration’s restrictions on relatives and refugees. That alternative would bypass review by the U.S. Court of Appeals for the Ninth Circuit — the ordinary path for appeal of a district court ruling.
Third, if the Justices are not ready to take on the review themselves, then allow to go forward an already pending appeal that the government has filed in the Ninth Circuit Court.
Fourth, whatever path the Justices lay out for the government challenge to Judge Watson’s order from here on, the Justices should issue an immediate, but temporary delay, of that order until they can act on a separate request for a more enduring postponement while considering where the controversy is to unfold, (In other words, issue an “administrative stay” right now to halt the Watson order, while considering whether to issue a “stay” while review of the Watson order proceeds.)
The Trump legal team contended that “disrupting the government’s implementation” of the presidential executive order – “which the district court’s [ruling] already is accomplishing” – “is entirely unnecessary.” The filing added that, once the Supreme Court has decided what its June 26 decision was intended to mean, “the government can address any aliens who would have been affected in the interim.” That last comment appeared to recognize that, in the period that the dispute over the Watson ruling is being reviewed, some foreign travelers who would have been entitled to enter the country, but had been barred, could be accommodated.
UPDATE 11:20 p.m. Friday. The following detail and explanation is added to this post:
The new government filing will go initially to Justice Anthony M. Kennedy, in his capacity as the “Circuit Justice” for handling emergency matters that reach the court from the geographic area of the Ninth Circuit, which includes Hawaii, where this particular court battle originated.
In that capacity, Kennedy has the authority, on his own, to grant a brief “administrative” delay of Judge Watson’s ruling, pending further action by the Supreme Court. But it would take the votes of five of the Justices to issue the clarification that the government requested of the court’s June 26 decision. And it would also take five votes to adopt a more lasting “stay” to keep the Watson order on hold while review proceeds.
It is not clear how many votes it would take for the court to bypass the Ninth Circuit Court and review the Watson order’s validity, but four probably would be sufficient. because that is the minimum number required for granting review of a case that reaches the Justices along a regular appeal path. It is a long tradition of the court to allow fewer than a majority of the entire court to accept cases for review, but it always takes a majority to decide a case in a final way – five, if all nine Justices are taking part.
Justice Kennedy is currently in Austria, where he had gone to teach a course. He has remained in Salzburg this week to be with his wife, Mary Kennedy, who fell and broke her hip. The Justice, and each of his eight colleagues, can be reached by the court staff and their own law clerks and secretaries, no matter how far the Justices are from Washington. Processes are in place for handling emergency matters.
The Trump Administration has now moved swiftly to try to get itself freed from Judge Watson’s ruling making a more expansive interpretation of what the Supreme Court intended on June 26. The judge’s order actually went into effect as soon as he issued it on Thursday afternoon, and the government must obey it unless it gets quickly a delay from the Supreme Court or the Ninth Circuit Court. It has not asked the Ninth Circuit Court for such a postponement, but it did tell the court that it is going to do so, as a backup gesture, if needed. The filing of an appeal to the Circuit Court was a necessary procedural step before the government could ask the Supreme Court to bypass that level and take on itself this phase of the ongoing controversy.
In this phase, the Justices are not going to be reviewing the ultimate question of whether President Trump had the authority to issue his March 6 executive order restricting the entry of foreign nationals from six Mideast nations with Muslim majority populations and the entry of refugees from anywhere in the world. That question, the Justices said, would be taken up early in the court’s next term, which starts in October.
What the government has now taken back to the Supreme Court is how rigorous the official restrictions on entry can be in the interim.
Its 40-page filing on Friday night argued strenuously that Judge Watson had wrongly taken on for himself the task of deciding who may enter the U.S. – a task that the government argued belongs to the Executive Branch. If the judge’s order is allowed to stand, the federal lawyers argued, virtually every member of the families of foreign nationals and refugees would be made eligible to enter the country, not just the “close” relatives that the Supreme Court had in mind last month. And, if the Watson order stands, the limits that the Justices allowed the government to impose on refugee entry would be “meaningless.”
Even though all that is presently at stake is what the government can do over the summer months while awaiting further Supreme Court action in the fall, that controversy on its own is heavily freighted with constitutional importance.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.