Arguing that the Supreme Court did not really mean to allow more foreign nationals who have relatives in the U.S. to enter the country under President Trump’s executive order on immigration, the Trump Administration asked a federal appeals court on Thursday to reinstate the limits that government officials wanted.
This bold argument came as Justice Department lawyers opened a new round of review of the scope of the executive order in the U.S. Court of Appeals for the Ninth Circuit by filing a 53-page legal brief. Challengers to the Trump immigration restrictions are due to file an answering brief early next month. The court fight over the family issue has come to be known popularly as a dispute over keeping out grandmothers, grandfathers, and grandchildren related to U.S. residents.
When the Supreme Court in a July 19 order sent this case back to the Ninth Circuit Court, it indicated that a wider group of overseas relatives of U.S. registers were eligible to enter the U.S. than the definition the government was using. The court did so by refusing to put on hold that part of a decision by a trial judge in Honolulu, expanding the definition of “family relationships’ that would be used to determine who among foreign nationals could come to this country. (The Justices appeared to be split 6-to-3 on that specific point.)
Justice Ruth Bader Ginsburg, who was among those in the majority, suggested in recent public comments that the court had taken that step because it had concluded that the government’s definition of what constitutes a family relationship had been too restrictive. Her remarks, of course, were unofficial and reflected her own views, but did appear to confirm the interpretation that other observers had put on the Justices’ unexplained July 19 order.
The Justices, however, did put on hold unanimously another part of that Honolulu judge’s action that would have opened the way for more refugees from foreign lands to become eligible to enter. If a refugee had an assurance from a refugee relief organization to re-settle that person once they had arrived in America, the judge had concluded that that was enough to give such a refugee a necessary “relationship” with the U.S.
The Justices agreed to postpone the actual effect of that part of the Honolulu decision “pending resolution” by the Ninth Circuit Court of an appeal that the Trump Administration had filed there to challenge the Honolulu order.
In its new brief, the Administration treated its pending appeal as involving both key parts of the Honolulu court order – the expansion of the definition of a family relationship, and the meaning of an assurance for resettlement of refugees, as openings for entry.
The first half of the new filing focused on the refugee question, arguing that the Honolulu decision would mean, in effect, that there was no real limit on the eligibility of refugees from around the globe to enter this country. An assurance of resettlement does not involve any relationship for a refugee personally, but is only based on a contract between the federal government and a refugee relief agency, the document contended, repeating an argument that government lawyers have repeatedly made while defending the Trump executive order.
But the second half of the brief operated on the assumption that the definition of what constitutes a family relationship under the Trump order had not been resolved by the action the Justices took on July 19, but instead was still a live issue it could pursue in its Ninth Circuit Court appeal.
It did note that the Justices had not postponed that expanded definition, but the new filing contended that that was only an “interim ruling” that “could have been based on” issues related solely to postponement, “factors besides the government’s likelihood” that it would ultimately win its legal defense of the Trump restrictions. The Justices’ action, the federal filing added, “does not resolve the merits of the government’s appeal” of the Honolulu order on the family relationship question.
The brief urged the Ninth Circuit Court to overturn the “erroneous ruling” by the Honolulu judge, U.S. District Court Judge Derrick K. Watson, and thus wipe out the family ties part of his decision.
Judge Watson had ruled that the Trump Administration could not keep out foreign nationals from six Muslim-dominated Mideast nations and could not keep out refugees from around the globe, if those travelers had a “credible claim of a bona fide relationship with” a person or entity inside the U.S. Those were the words the Supreme Court had used in an earlier ruling, on June 26, giving the Trump Administration partial authority to begin enforcing the presidential order.
The government had interpreted those same words to mean that the only foreign relatives of U.S. persons who were eligible to enter the country were a parent, a parent-in-law, spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling (whether whole or half), and “step relationships.”
Judge Watson, however, interpreted the Supreme Court’s June 26 phrasing to also include grandparents, grandchildren, sisters-in-law, brothers-in-law, cousins, nieces, nephews, aunts and uncles. That broader definition of family ties was challenged by the Trump Administration when it returned to the Supreme Court earlier this month.
The Justices turned down, over three dissenting votes, the government request to block the use of the broadened category that the Honolulu judge had fashioned.
Renewing its attack on that expansion, the new Administration brief said that only those with a “close” family tie to someone in the U.S. should be among those eligible to enter the U.S., and argued that the only proper way to define what “close” means is as the government had done.
That definition, it contended, is derived from provisions in federal immigration law, and thus should be applied in interpreting the proper scope of the Trump executive order.
The brief added that, if the Ninth Circuit Court was not prepared to throw out all of the family ties the judge had added, it should at least pare down the list to only those ties that were genuinely “close.”
Under a schedule released on Monday by the Ninth Circuit Court, the government’s opening brief was due Thursday, the challengers’ brief is to be filed on August 3, and a government reply brief is sue by August 9. At this point, the court order said, it did not plan to hold a hearing before ruling on the government’s appeal.
It seems likely that, whichever side loses in the Ninth Circuit Court will try to take the case back to the Supreme Court. The Justices already have agreed to rule, at their next term, on the ultimate question of whether the Trump executive order was a valid use of presidential power. The Justices are scheduled to hold a hearing on that on October 10. That will include both the case from Hawaii and a separate case from Maryland. In both, federal appeals courts had ruled that the Trump order was unconstitutional as a form of religious bias against Muslims.
Technically, the review set for October is separate from the current continuing battle in court over how far the Trump order can go in the meantime to regulate immigration of foreign nationals from Mideast nations and refugees.
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.
