A federal court in Hawaii dealt a new blow to President Donald Trump’s Muslim ban late Thursday evening, lifting a controversial policy that prevented certain close relatives of U.S. residents from entering the country, while also paving the way for many refugees to elude the ban.
The path to Judge Derrick Watson’s order in Hawaii v. Trump is long and somewhat winding. Watson previously handed down an order suspending the ban in its entirety, but that order was partially stayed by the Supreme Court. Under the Supreme Court’s order, persons subject to Trump’s Muslim ban could still enter the United States, but only if they “have a credible claim of a bona fide relationship with a person or entity in the United States.”
The Trump administration responded to this vague order by reading it very narrowly. Though the Supreme Court held that foreign nationals who have “a close familial relationship” with someone in the United States cannot be excluded under the Muslim ban, it offered little guidance on just how “close” such a relationship must be to count. The Trump administration’s definition excludes grandparents, grandchildren, aunts, uncles, nieces, nephews, and cousins.
Judge Watson’s order, however, holds that the Trump administration’s reading of the Supreme Court order is too narrow. Among other things, Watson quotes a past Supreme Court decision holding that relationships with grandparents, uncles, cousins and the like are “deserving of constitutional recognition.”
Under Watson’s order, the Muslim ban cannot be applied to “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.”
Additionally, the order also holds that refugees who “have a formal assurance from an agency within the United States that the agency will provide, or ensure the provision of, reception and placement services to that refugee” are not subject to the ban. This exception to the ban is likely to prove quite broad indeed for, as Watson acknowledges, “before any refugee is admitted to the United States . . . the Department of State must receive a commitment (‘assurance’) from a resettlement agency.”
It should be noted that Judge Watson’s latest order is only a lower court’s interpretation of a temporary Supreme Court order providing an interim rule that governs until the justices have the opportunity to fully consider this case on the merits. Watson’s order could be reversed or modified by a higher court. And it will likely become moot when the Supreme Court decides the final fate of the Muslim ban.
Yet, for the moment, at least, the ban is much weaker than it was even a few hour ago.