The Justice Department is asking the Supreme Court to stay part of the Ninth Circuit’s ruling regarding the travel ban.
Last week, the Ninth Circuit affirmed a lower court decision holding that the Trump administration too narrowly construed “bona fide relationship” when it was figuring just which Muslims it was allowed to ban. Now, the Department of Justice is appealing part that decision to the Supreme Court, and Justice Anthony Kennedy has granted a temporary stay of the Ninth Circuit’s order.
The part that Justice is not appealing is the part that applies to “grandmas.” The Ninth Circuit said that Trump got it wrong when prohibiting certain familial relations, and Justice is cool to let that part of the ruling stand. The Department says it wasn’t banning grandmas in practice, anyway. It’s the legal equivalent of falling flat on your face and then declaring, “I meant to do that.”
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But the Justice Department is appealing the stuff that applies to refugees. Because, you know, people can empathize with grandparents more easily than they can empathize with desperate people fleeing a war-torn nation. Or something.
The Ninth Circuit ruled that refugees who have received assurances of assistance from people or organizations within the U.S. had a “bona fide relationship” with the country, and must be allowed in. The Trump administration would still like to ban those people — for reasons truly passing understanding to me — and so they’re appealing.
Justice Kennedy granted the administration’s request to stay this part of the ruling, pending further argument. Truly, I’m not sure how it will all shake out because this was always the most confusing part of the Court’s initial order partially allowing the ban to go forward. In pertinent part, here is the language explaining what a “bona fide relationship” would look like between banned people and entities in the United States:
As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.
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The relationship has to be in the “ordinary course” as opposed to for the purpose of “evading” the ban. But, what about a normal relationship that is only made necessary because of the ban? The people the Ninth Circuit is trying to get in are refugees who have made arrangements with refugee resettlement agencies. It is ORDINARY for those organizations to help refugees. But that relationship would seem to be also necessary given that the order is trying to ban refugees based solely on their country of origin. Are the refugees “evading” the ban? Well, absolutely. But they’re also doing a normal thing refugees did before our country turned into a failed Republic.
And how does this all play out with oral arguments on the ban as a whole set for October 10th? Is the Court going to resolve this issue before then? Is it going to wait till it issues an order on the whole thing, potentially rendering the refugee issue moot?
Speaking of mootness, the whole “90-day refugee ban” think should technically toll on September 27th. Is Trump going to issue a new, 90-day “emergency” ban on refugees, then?
People, we live in a world where there is potentially a refugee who couldn’t come last month, could come last Friday, can’t come today, will be able to come in two weeks, but won’t be allowed to come after the Court renders a ruling a month from now… SUBJECT TO FUTURE LITIGATION! #ThanksDonald!
Trying to ban people based on where they come from instead of based on things they’ve actually done is very hard. I continue to be amazed that this seems to be an issue that Supreme Court really wants to consider. Any extension of the Trump travel ban will result in years and years of litigation, and the lower courts will feel emboldened to continue to test the Supreme Court on every iteration of the policy. Does the Court really want to be playing whack-a-mole with this thing for four years, only to have it all overturned by the next President like eight minutes after his or her inauguration? Why is Kennedy stepping on the Ninth Circuit here? Why do any of them want this?
For that matter: WHY IS ANY OF THIS HAPPENING? That’s the question that the Trump people have never satisfactorily answered with any of this Muslim ban/travel ban argument. What, precisely, is the security situation they want to achieve, and how does indiscriminately banning refugees help that effort? WHERE IS THE EMERGENCY?
Is there anything to this policy beyond its obvious bigotry and xenophobia? And if not, why is the Supreme Court so eager to pretend that there is?
Earlier:
https://abovethelaw.com/2017/09/ninth-circuit-trump-travel-ban-defeat/
Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.