The exemptions came in the wake of a U.S. Supreme Court ruling last month that said the president’s 90-day ban on visitors from Iran, Libya, Somalia, Sudan, Syria and Yemen can be enforced pending arguments scheduled for October as long as those visitors lack a “credible claim of a bona fide relationship with a person or entity in the United States.”
Hawaii says grandparents, uncles and aunts and other relatives of people in the U.S. should also be allowed in. The state asked U.S. District Judge Derrick Watson in Hawaii, who blocked the president’s revised travel ban in March, to clarify that those family members are also exempt from the ban.
What did the judge say and where did the case go from there?
Watson rejected Hawaii’s request, saying the state should go to the U.S. Supreme Court since it was seeking to clarify that court’s requirement of a “bona fide relationship.”
“It is evident that the parties quarrel over the meaning and intent of words and phrases authored not by this court, but by the Supreme Court,” Watson wrote in a July 6 decision.
Hawaii appealed Watson’s ruling to the 9th U.S. Circuit Court of Appeals, but the court said Friday Watson’s ruling was not appealable under federal judicial laws. The 9th Circuit, however, said Watson had the authority to interpret the Supreme Court’s order and block any violation of it. Hawaii then renewed its request with Watson in a different form. It appeared to use the federal appeals court’s ruling as a guide.
Legal experts say Hawaii got caught in a procedural morass. Hawaii’s latest motion is “just the same thing put in the right terms,” said Richard Primus, a professor of constitutional law at the University of Michigan law school. “This is a ‘mother may I’ magic words problem. It’s not a substantive problem.”
What could happen next?
Primus said he expects that Watson will now issue a ruling on the merits of Hawaii’s request.
That means he could expand the list of family members exempt from the ban or side with the administration and keep its limitations in place. Any ruling could then be appealed to the 9th Circuit.
David Levine, a professor at the University of California, Hastings College of the Law in San Francisco, said there is a third option. Watson could again reject Hawaii’s request, this time on the grounds that the state had failed to show any imminent threat of harm. That’s because the state does not have a concrete example of a real person whose relative was prevented from coming to the U.S. because he or she did not meet any of the Trump administration’s family exemption requirements. That would again avoid a ruling on the merits of Hawaii’s request.
A ruling could come as soon as this week. Watson has asked the administration to file its opposition by Tuesday and Hawaii to respond by Wednesday.