This week, the Supreme Court will likely need to get off the fence and give the nation some meaningful guidance regarding Donald Trump’s Muslim ban.
The newest pressure on the Supreme Court arises from an order handed down by a federal district court late Thursday. Among other things, the order halted the so-called “grandmother ban,” which prevented certain relatives of people within the United States from traveling to this country.
The Trump administration wasted no time asking the Supreme Court to halt this lower court order, filing a motion making that request Friday night.
The path leading this case back to the Supreme Court is more than a little convoluted. Trump originally banned nationals of seven Muslim-majority nations from entering the United States, although he later watered down this order and reduced the number of impacted nations to six. Multiple courts blocked both orders in their entirety — but then, the Supreme Court handed down its own order in late June, which reinstated some of the ban until the Court has a chance to issue a final decision on the merits.
The Supreme Court’s June order in Trump v. International Refugee Assistance Project as not a model of clarity. It permits Trump to keep some people from the six Muslim nations out of the country, but does not allow him to enforce the Muslim ban against “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”
This exemption from the ban includes foreign nationals who have a “close familial relationship” with someone in the United States. The Court provided little guidance, however, on which relationships are sufficiently “close” to benefit from this exemption.
International Refugee Assistance Project in other words, reads like the sort of compromise order that arises when a majority of the justices can’t agree on a single best outcome, so they decide to leave a number of important questions unresolved. As Justice Clarence Thomas noted in dissent, the unclear standard announced in the Court’s order “will invite a flood of litigation until this case is finally resolved on the merits.”
Some of that flood likely could have been avoided if the Trump administration had reacted to the Supreme Court’s order with more subtlety. Instead, the administration read the Court’s order very narrowly, concluding that “close” family relationships do not include grandparents, grandchildren, aunts and uncles, nieces and nephews, and cousins. Hence the “grandmother ban.”
That leads us to Judge Derrick Watson’s Thursday order in Hawaii v. Trump. Among other things, Watson’s order exempts “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States” from the ban, thus defying the Trump administration’s efforts to read International Refugee Assistance Project narrowly.
Even more significantly, Watson held 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 exempted from the ban. This exemption is quite broad indeed, as any refugee admitted to the United States must receive such a formal assurance.
In its motion asking the Supreme Court to block Judge Watson’s latest order, the Trump administration makes a number of arguments — some plausible, some ridiculous.
On the more plausible side, the administration notes that Watson’s order would effectively exempt “every refugee who is likely to enter the United States” from the Muslim ban. It is unlikely that the Supreme Court intended this result; if it had, the Court probably would have simply handed down an order saying as much.
On the more ridiculous side, the administration claims that the Supreme Court “did not declare that a ‘mother-in-law’ automatically has a qualifying ‘close familial relationship,’” even though the Court’s order explicitly stated that an individual’s mother-in-law “clearly has such a relationship” with them.
In any event, the Court ordered the plaintiffs challenging the Muslim ban to respond to each of the Trump administration’s arguments by midday Tuesday, and if you want to read a preview of what some of their arguments are likely to look like, you can read Leah Litman’s takedown of the administration’s motion over at Take Care.
But the truth is that the Court now finds itself being asked to clarify its International Refugee Assistance Project order because that order lacks clarity.
In issuing a vague, compromise order, the justices who joined that order likely hoped to delay a final reckoning on the Muslim ban until after they hear oral arguments on the merits. Perhaps that strategy may have worked if the Trump administration hadn’t interpreted its own authority under the compromise order so broadly as to even permit a grandmother ban.
But judges arrive at court with the president we have, not with the president we want. So, while it is not impossible that the justices will find some new way to delay a real reckoning on the Muslim ban, it will grow increasingly hard for them to do so. Whatever they say in their next order, they now know that the Trump administration will interpret it in the narrowest way possible.