Constitution Daily

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The puzzle over who will decide the immigration controversy

July 16, 2017 by Lyle Denniston


Legal disputes in the federal courts often unfold in a familiar pattern, going from the lowest-ranking court and then, step by step up the ladder, finally reaching the Supreme Court.   It is usually quite orderly, even when an urgent situation is developing.

The usual pattern, though, has not been followed lately in the constitutional controversy over President Trump’s March 6 executive order on immigration.  In the past few weeks, in fact, the judicial flow chart has looked more like a diagram for a ping-pong match.

Late last week, the flow chart ran – not in a straight line — from Honolulu, to San Francisco, to Washington, D.C., and there might even have been a line running to Salzburg, Austria.

The Trump Administration, on the defensive in recent days, actually thinks that the whole thing should be settled right away in Washington, by the Supreme Court.  But it is taking no chances: it has at least four separate legal maneuvers in progress, and it can’t be sure which one – if any – might actually work.

Right now, it is under orders from a federal judge in Honolulu to relax the Trump executive order so as to allow the entry into the U.S. of more foreign travelers who have relatives in this country – for example, accepting grandparents and others instead of just parents and children — and more refugees who have been promised that they will be re-settled when they arrive.   The Administration insists that it does not have to do either.

The judge, Derrick K. Watson, refused to delay his order, but there has been no sign that he would move to hold the government in contempt for failing to carry it out immediately, as he had mandated last Thursday.  He apparently is extending a courtesy to the government, allowing it some time to try to get his order nullified, or at least put on hold.

Adding to the confusion, for anyone trying to follow this convoluted court battle, is the fact that the Supreme Court does not even plan to rule, until later this year at the earliest, on whether President Trump had the authority to issue his new immigration restrictions against foreign travelers from six Mideast nations with Muslim population majorities, and against refugees from anywhere in the world.

And further adding to the confusion is the reality that what is at stake, at this point, is not what Judge Watson ordered to be done, but what the Supreme Court itself meant on June 26 when it gave the Administration permission – but not completely — to start enforcing the Trump order.   Whatever legal gestures are now being tried, the aim is still to get an answer to the question: what does the Supreme Court think the Administration can do under the presidential order?

At one point in recent days, Judge Watson actually agreed with the view of the Trump legal team that he had no authority to try to sort out what the Justices meant on June 26.  The Supreme Court, the judge said at that time, had made its order, and it alone could clarify it.

He had been urged to clarify the Justices’ handiwork by lawyers for the state of Hawaii, and their allies among 15 other states and two refugee rights groups, all contending that the Administration was interpreting too narrowly the new restraints that the Justices had put on the Trump policy.  The Administration, the challengers argued, defined family ties of travelers too restrictively, and refused to honor resettlement promises as a key to entry for refugees.

Since their challenge had originated in Judge Watson’s court, and it was an earlier order he had issued that the Supreme Court modified in its ruling on June 26, Hawaii’s legal team contended that he should do the clarifying.   That plea was rebuffed by the judge, so the challengers sought help from the U.S. Court of Appeals for the Ninth Circuit, in San Francisco.

The ping-pong effect intensified when that appeals court gave the Honolulu judge permission to consider a plea, if the challengers made it, to stop the Administration from doing anything that the judge might find would violate the Supreme Court’s decision.  The challengers then asked for that, and the judge granted their request, relaxing the Trump restrictions.

That is where matters stood last Friday.

The normal route of appeal for the Administration at that point would be to the Ninth Circuit Court.  But, persuaded that it was the Supreme Court that needed to clear things up, government lawyers rushed to file their appeal in Washington.

They asked for three things.

First, they wanted a temporary order postponing Judge Watson’s new order, until the Justices could sort out their other requests.  Ordinarily, that kind of plea would go to a single Justice – in this case, Justice Anthony M. Kennedy, who has the assignment to handle such requests from the Ninth Circuit.

He apparently was traveling in Austria at the time, so it is not clear whether he was drawn into the controversy at that point.  His schedule also got disrupted, when his wife fell in Salzburg, and broke her hip.   It is not clear how the Supreme Court is handling the first request of the government.

The second request made by the federal lawyers was for the Justices themselves to go ahead and act, to put Judge Watson’s order on hold and to overturn it.  And then, the third request: the Justices should decide whether it was better for the controversy at this point to go back to the Ninth Circuit Court for its reaction to the Watson order; if so, the government said it would go that route.

In the meantime, it had formally notified Judge Watson that it was appealing his order, though it said then that it was taking its appeal to the Ninth Circuit.  That apparently was a necessary step to making the second request they would be making to the Supreme Court – that is, that the Justices rule without waiting for the Ninth Circuit.

The Trump team made its next gesture Friday night, a backup request to the Ninth Circuit Court to put Judge Watson’s order on hold, so that the government would not have to change its policy while either the Supreme Court of the Ninth Circuit Court was reviewing the Watson order.

So far, the Supreme Court’s only action in response to all of the Administration requests was to tell the Hawaii legal team to respond by noon on Tuesday.  Nothing has happened on the plea for a temporary hold on the Watson order, so technically that order is fully in effect even if not being carried out.

When the current round in this legal match has been won or lost by the Administration, the underlying question of President Trump’s power to have issued his executive order will be explored by lawyers for both sides over the summer, as they file formal legal briefs in advance of a hearing the Justices have said they plan to hold on the controversy during the first public sitting next October.

The lingering question is whether there will be anything for the Justices to decide at that point.  The Trump executive order had specified that the limits on arrivals from the six Mideast nations would be in operation for only 90 days, and those on entry of refugees for only 120 days.  Will those timelines expire before the Justices could rule?

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


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