U.S.: Only Supreme Court can relax immigration limits

by Lyle Denniston, US Constitution Center, July 12, 2017

Disagreeing with a federal appeals court, Trump Administration lawyers argued on Tuesday night that a federal judge had no authority to expand the categories of foreign nationals and refugees who may enter the U.S. under a presidential executive order.

In a new filing in a federal trial court in Honolulu, the Trump team argued that U.S. District Judge Derrick K. Watson “lacks authority…to grant additional relief beyond what the Supreme Court permitted” in its June 26 decision on this immigration controversy.  The U.S. Court of Appeals for the Ninth Circuit indicated just last Friday that Judge Watson did have authority to interpret what the Justices had done, and to order a stop to any violation of the Justices’ ruling if he made such a finding.

The new government document did not mention the Circuit Court’s statement on the point, but argued instead that Judge Watson has lost authority over the case because the Supreme Court has granted review of the legality of President Trump’s executive order – an issue it is scheduled to take up in October, soon after opening its new term.  The Justices agreed to take on that question on the same day that they eased, somewhat, the Trump Administration restrictions.

Once again, the government raised the prospect that it would seek to take the dispute directly to the Supreme Court, if Judge Watson issued any new order relaxing the limitations that the Administration has put on entry of foreign nationals from six Mideast nations with Muslim majorities, and on entry of refugees from anywhere in the world.  The travel-to-the-U.S. restrictions, under the executive order, are to be suspended for specified periods — 90 days for Mideast travelers, 120 days for refugees.

For the first time, the Administration used its new filing on Tuesday to raise at least the possibility that it might give up the court fight at some point.  In asking Judge Watson to put on hold any new order he might issue to relax the Administration restrictions, it argued that such a postponement should last until the government attempted to pursue appeals to higher courts, or until the government filed “prompt notification….that it does not intend to seek any such further review” — whichever is later.  It was not clear, from the wording of that part of the new filing, just what would trigger such a decision to drop the battle.

President Trump himself has demanded several times that his lawyers defend his executive order on immigration as far up in the courts as they need to go.  It is not clear how a decision by the Justice Department to forsake further appeals would square with the President’s views.

Judge Watson now has before him a plea by the state of Hawaii and an Islamic imam, supported by 15 other states, the District of Columbia government, and by two refugee rights groups, to issue an order that would require the Trump Administration to lengthen the list of foreign travelers, including refugees, who have to be admitted to the U.S. despite the Trump executive order.

The Supreme Court, in its June 26 ruling, had declared that the government may not keep out foreigners who have “a credible claim of a bona fide relationship with a person or entity in the United States.”   It gave some examples, but did not spell out in full what it meant by those words.

The Trump Administration interprets that wording in a considerably more narrow way than Hawaii and its supporters do, by excluding, for example, grandparents of people living in the U.S.    It also interprets far more narrowly which categories of refugees can qualify for admission.

This is the second time that Judge Watson has been asked to rule that the Administration’s stance violates the Supreme Court.  Last week, he refused to take action to clarify what the Supreme Court had decided, saying it was the Justices’ order, not his, that was at issue so he could not clarify it.

Hawaii’s lawyers then took the case to the Ninth Circuit Court.  While that court ruled last Friday that it had no jurisdiction to review Judge Watson’s denial of the kind of relief thaet the challengers had sought, it pointedly suggested that Hawaii and its supporters could go back to the Honolulu judge and ask for a different kind of order, to stop any violation of the Supreme Court order.

Now, with the latest filing by the Justice Department, Judge Watson faces this dilemma: does he accept the Circuit Court’s view that he does have authority to grant some remedy to Hawaii and its supporters, relaxing the Trump restrictions, or does he conclude – as the government contended – that the Supreme Court has taken the controversy away from him by granting its own review of the underlying legality of the Trump executive order itself?

The new government document offered a mixed array of arguments.  Aside from disputing the Honolulu judge’s order to grant any new remedy to Hawaii and its supporters, it directly argued against the specifics of the challengers’ suggestions that the government was violating the Supreme Court’s ruling.

It argued that Hawaii and its supporters should not have tried to take the dispute to the Ninth Circuit Court after Judge Watson had refused their plea earlier, but should have gone directly to the Supreme Court.  Even now, it added, the proper place for the challengers to take their plea is to the Supreme Court itself. Further, it argued that the Justices do have the authority to clarify an order they have issued, if they are asked to do so.  Since the case is still pending before the Justices, they could act on a clarification or modification plea, the document went on.

Standing out in this new filing, though, were the suggestions of what the government intended to do if Judge Watson did decide to relax the government’s restrictions.

In that event, it said, the judge should postpone the effectiveness of such a decision until the later of two possible situations: until the “prompt filing and disposition of a request by the government to the Supreme Court for clarification” of what it meant (or a prompt appeal to the Ninth Circuit Court in the event the Justices turned aside the clarification request), or, until “the prompt notification by the government that it does not intend to seek any such further review.”

The latter part of that statement, by referring to abandoning “such further review,” the government appeared to be suggesting that, even if Judge Watson did rule for Hawaii and its supporters, the Trump team might simply choose to give in.   It did not elaborate on that suggestion elsewhere in the document.

If Judge Watson does impose a relaxation of the Trump restrictions, and if he chooses to put any such ruling on hold, it appears that he would have to sort out just what he understands the government to be proposing that he write into a postponement order.

Hawaii’s lawyers are expected to file, by tomorrow, their reply to the government’s Tuesday response.   Presumably, Judge Watson will then act promptly on the dispute as it now stands before him.