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SCOTUS Upholds Hawaii District Court Modification to Travel Ban

By George Khoury, Esq. on July 19, 2017 | Last updated on March 21, 2019

On Wednesday, July 19, 2017, SCOTUS denied President Trump's lawyers' motion seeking clarification of the Court's recent order lifting the injunction that stopped the controversial travel ban from being enforced. The Court issued a short, two-paragraph, three-sentence, order denying the motion, primarily explaining that the Ninth Circuit Court of Appeals needs to rule before the High Court will rule again on this issue.

Curiously, the second paragraph to the order is a single sentence that states: "Justice Thomas, Justice Alito, and Justice Gorsuch would have stayed the District Court order in its entirety."

What Was This All About?

The motion seeking clarification was sought by Trump's attorneys after a Federal District Court judge in Hawaii, the honorable Judge Derrick K. Watson, expanded the definition of who would qualify under the revised executive order. Justice Watson's expansion, according to government lawyers, did not comport with the Court's June 26, 2017 order lifting the injunctions issued by lower courts banning the ban. In that order, SCOTUS explained that the travel ban could not be applied to individuals with bona fide ties to the United States, but still lifted the injunction, instructing the executive to revise and limit the executive order's reach.

The Court explained in June that a bona fide tie included students accepted into U.S. schools, workers offered jobs at U.S. companies, and close family members. When the Trump administration revised the order, per SCOTUS's instruction, they only allowed for parents, spouses, children, children-in-law, and siblings as close family members. Critics found that the revision essentially failed to accurately reflect societal understanding of a "close family member." Justice Watson opened up the close family members exception to be more in line with current cultural perceptions, and included grandparents, siblings-in-law, aunts, uncles, nieces, nephews, and even cousins.

A Folly of Procedure

The short decision is not without subtle complexity. While the Court denied the motion, it did partially lift the injunction ordered by Justice Watson, as it pertained to "refugees covered by a formal assurance." These are the potential immigrants who have been aided by nonprofit organizations to seek asylum in the United States.

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