Now that a version of President Donald Trump’s travel ban is finally in effect, its critics are having a tougher time getting the courts to tweak it.
On Thursday night, Federal District of Hawaii Judge Derrick K. Watson — one of the judges who stopped the travel ban from going into effect back in March — refused to answer a question about whether some relatives of US residents, and most refugees, ought to be banned under the ruling the Supreme Court issued last week.
The government is currently barring people from six majority-Muslim countries from getting visas to come to the US for the next 90 days — and (as of next week) barring refugees from entering the US for 120 days — unless they have a “bona fide relationship” with a person or organization in the US.
The way the Trump administration is interpreting “bona fide relationships” doesn’t include some relatives like grandparents, grandchildren, aunts and uncles, or refugees whose connection to the US is that a refugee resettlement agency has agreed to assist them when they arrive. Some of the people who took the travel ban to court to begin with think that’s a misinterpretation. Groups sued to get “clarification” on the Supreme Court’s ruling, hoping some of these relatives and agencies would be included, but Judge Watson took a pass and basically said that only the Supreme Court can decide what it means:
…the parties’ disagreements derive neither from this Court’s temporary restraining order, this Court’s preliminary injunction, nor this Court’s amended preliminary injunction, but from the modifications to this Court’s injunction ordered by the Supreme Court. Accordingly, the clarification to the modifications that the parties seek should be more appropriately sought in the Supreme Court.
In practice, this means that grandparents and other relatives the federal government doesn’t deem “close” who come from the six blacklisted countries will stay banned for the foreseeable future (though individuals can get waivers to come to the US in some cases). And it means that once the government lowers the boom on refugees next week, it’s going to get much harder for refugees to qualify to come — though the State Department still hasn’t released final guidance about whether any relationship with a resettlement agency does count as “bona fide.”
As law professor Ilya Somin pointed out at the Washington Post, and Supreme Court reporter Lyle Denniston observed on his blog, this is kind of a weird ruling. It’s pretty common for the Supreme Court to issue a ruling and then leave it to the lower courts to figure out exactly how that ruling applies to any future questions the parties have.
In fact, Denniston points out, “it is not clear where, in the court’s rules of procedure, there is a provision allowing a motion to clarify or modify,” like the one that got filed in the Hawaii court. (That’s setting aside the fact that the Supreme Court is out of session for the summer; even if the travel ban’s challengers could file a motion, the Court might decide that it wasn’t worth reconvening in the middle of its summer recess to iron out what seems like a couple of wrinkles in an earlier order.)
Instead, what’s probably going to happen is that the people who asked Judge Watson to clarify the scope of the ruling will now appeal his denial to the Ninth Circuit Court of Appeals. The Ninth Circuit will then have to decide if Watson is right, and only the Supreme Court can (somehow) decide whether grandparents and refugee resettlement organizations count as “bona fide” relationships, or if Watson is wrong and lower courts can answer those questions. If the latter, it might decide to answer the questions itself, or kick them back down to Watson to answer.
It’s fair to say that this probably won’t be resolved quickly. In the meantime, the government’s definition of “bona fide” will stand — which is bad news for grandparents, and (potentially) extremely bad news for refugees.