On July 6th, we covered the United States Supreme Court decision regarding President Trump’s travel ban. That Order limited the entry of foreign nationals and refugees based on an individual’s “bona fide relationship” with an entity or person in the United States and capped the number of refugees that may enter for 2017 at 50,000. Implementation has been one of the major practical concerns in all of the immigration-related Executive Orders – the SCOTUS decision is no different.

In its June ruling, the Supreme Court ordered that individuals with a “bona fide relationship” to the United States are exempt from the Executive Order’s restrictions. Although the Supreme Court offered a general definition of what may qualify as a “bona fide relationship,” many uncertainties remain. The Trump Administration interpreted the Court’s language narrowly, applying the ban to grandparents, aunts, uncles, nieces, nephews, and other family members. Moreover, the State Department defined close family as a “parent, spouse, fiancé, child, adult son/daughter, son/daughter-in law, sibling, including step relationships.”

On Thursday, July 14, 2017, United States District Court Judge Derrick Watson for the District of Hawaii ruled that the travel ban cannot be enforced for individuals with close familial relationships with grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nephews, or cousins in the United States. In its ruling, Judge Watson stated the Government’s definition of “close familial relationship…is unduly restrictive” and “represents the antitheses of common sense.” Conversely to the Trump Administration’s implementation of the Supreme Court’s ruling, Judge Watson reasoned that grandparents “are the epitome of close family members.”  The District Court also ruled that any refugee who has connections to a resettlement agency in the United States is exempt from the travel ban. The District Court’s ruling could admit approximately 24,000 additional refugees into the United States.

In response to the District Court of Hawaii’s decision, on July 14, 2017, the Trump Administration filed a motion with the Supreme Court to block the District Court’s ruling and overturn the decision and filed a similar request in the Ninth Circuit Court of Appeals. In its response, the state of Hawaii urged the Supreme Court to leave the federal judge’s ruling in place.  Moreover, the state of Hawaii asked for the Supreme Court to allow the lower courts to clarify the June 26th decision, whereas in its July 14th motion the Trump Administration emphasized the need for clarity to come solely from the Supreme Court. On July 19th, the U.S. Supreme Court denied the government’s motion seeking clarification of its June 26th Order, but the lower court’s order with respect to refugees was stayed pending the government’s Ninth Circuit appeal.

The take-away from the recent activity is that grandparents are exempt from the Executive Order’s restrictions, but refugees are not. The immigration community is now keeping an eye on the Ninth Circuit’s decision, and the U.S. Supreme Court’s review in October.

In an earlier post, we discussed President Trump’s second Executive Order (E.O.) aimed at restricting entry into the United States of certain foreign nationals. In a 10-3 decision, the Fourth Circuit Court of Appeals blocked President Trump’s E.O. stating that it “drips with intolerance, animus, and discrimination.” Similarly, the Hawaii decision, which ruled against the E.O., was appealed to the Ninth Circuit; that court has not yet made a ruling.

Next stop, the United States Supreme Court (SCOTUS). Although SCOTUS has not granted review of the E.O., the Justice Department has requested the Court for an urgent review. However, before SCOTUS rules on the substantive issues surrounding the E.O., the Court must first grant cert, i.e., at least four of the nine Justices must agree to review the matter. SCOTUS will review the merits of the case only if cert is granted.

Notwithstanding the passionate debate surrounding the E.O., the key legal issue here is the scope of the President’s authority, specifically in the arena of immigration and national security. Stemming from this are a plethora of other issues for the Justices to evaluate, including (1) whether President Trump’s campaign statements may be used as evidence; (2) whether the E.O. violates the Establishment Clause of the First Amendment; and (3) determining what is the appropriate precedential standard for this case.

SCOTUS review of an executive order is not unprecedented. The first of two notable examples: the 1952 case Youngstown Sheet & Tube Co. v. Sawyer, SCOTUS reviewed President Truman’s executive order, and held that the President lacked the authority to seize private steel mills during the Korean War. Second, in the 1981 case Dames & Moore v. Regan, the court ruled in favor of President Reagan’s executive orders, providing deferential review given the national security context of the Iran Hostage Crisis.

Given the confusion surrounding the E.O., litigation in multiple jurisdictions, and the political importance of the matter, SCOTUS is likely to grant review, establishing the appropriate standard and providing clarity nationwide. Haynsworth Sinkler Boyd, P.A.’s immigration team will provide further updates.