Appeals Court Denies Hawaii's Request To "Clarify" Trump's Travel Ban Enforcement Rules

A flurry of legal movements over the past 24 hours have — for now — led to no changes in the federal government's enforcement of President Trump's travel ban.

It began when the federal judge in Hawaii — who initially halted enforcement of Trump's revised travel ban — said on Thursday that questions about the administration's current enforcement of the executive order should be directed to the Supreme Court, which allowed the ban to go into effect in part.

US District Judge Derrick Watson, who issued an injunction in March stopping large portions of the ban from going into effect, denied Hawaii's request to further clarify his injunction in the wake of the Supreme Court's late June order allowing partial enforcement of the travel and refugee bans.

Watson did not, however, rule on the merits of Hawaii's request, instead ruling that the questions Hawaii posed related not to his initial injunction but instead to the Supreme Court's subsequent order narrowing the injunction.

"To be clear, the standard Plaintiffs ask this Court to clarify—i.e., 'a credible claim of a bona fide relationship with a person or entity in the United States,'—is not set forth in any order of this Court," Watson wrote. "Because Plaintiffs seek clarification of the June 26, 2017 injunction modifications authored by the Supreme Court, clarification should be sought there, not here."

On Friday, Hawaii instead went to the US Court of Appeals for the Ninth Circuit, arguing that lower courts "routinely interpret the scope of remand orders from a court of appeals or the Supreme Court when the parties dispute their meaning."

In the filing, a request for emergency relief, the lawyers for Hawaii asked the appeals court to "enjoin the Government’s unlawful conduct" — barring the government from enforcing the ban in ways Hawaii argues are inappropriate in light of the Supreme Court's ruling — or "order the District Court to issue an order clarifying the scope of the injunction."

The Ninth Circuit — before even receiving a response from the federal government — denied Hawaii's request later Friday. The three-judge panel — Judges Michael Daly Hawkins, Ronald Gould, and Richard Paez — held that the court lacked jurisdiction to consider Hawaii's request. It went on, though, to suggest that Hawaii could go back to Watson's court with a different type of request.

Rather than seeking "clarification" of the Supreme Court's order at the district court, the court noted that Hawaii could ask the district court "to grant injunctive relief or to modify the injunction" against the travel ban.

In other words, the Ninth Circuit ruled that while the district court was correct to say it cannot clarify a Supreme Court order, it could issue a further injunction or modify the existing injunction against the federal government if Watson decides the Trump administration is violating the Supreme Court's order.

Hawaii, for its part, appears ready to listen. In a statement, Hawaii Attorney General Doug Chin said the ruling "makes clear that Judge Watson does possess the ability" to "interpret" the Supreme Court's order and "enjoin against a party's violation" of that order.

"We appreciate the Ninth Circuit for ruling so quickly and will comply," Chin said in the statement.

The highly deferential order from Watson on Thursday followed earlier rulings from both appellate courts to review his injunction that resulted in the narrowing of the injunction. While Watson initially barred enforcement of the entire sections of the executive order relating to the travel ban and refugee ban, the US Court of Appeals for the 9th Circuit narrowed that slightly — allowing enforcement of the internal review procedures called for in the order, but keeping the actual bans on hold.

On June 26, the Supreme Court announced that it was narrowing the injunction even further, allowing the bans to be enforced partially while the justices review the case — but not against those with "a credible claim of a bona fide relationship with a person or entity in the United States."

The bans went into effect at 8 p.m. on June 29. In the hours beforehand, the State Department and Department of Homeland Security made public information about how the administration was interpreting that phrase. Initially, those with a "close familial relationship" — what counted as an exempted "bona fide relationship" with a person — included only "a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half."

It did not include "grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-laws and sisters-in-law, fiancés, and any other 'extended' family members."

This led Hawaii to go to Watson's court — and then, subsequently, the Ninth Circuit — seeking clarification.

As the ban went into effect, it soon became clear the administration had shifted its view on "fiancés" — moving them into the "close familial relationship" category. The federal government has not shifted any of the other relationships between categories.

The administration also maintains that, for refugees, having an established connection with, and receiving assurances of support from, a resettlement agency is not a sufficient connection with an entity to count as a bona fide relationship. In addition to the Hawaii plaintiffs, the plaintiffs in a lawsuit brought by the Pars Equality Center in federal court in Washington, DC, have challenged that decision by the administration. Pars Equality Center's request remains pending.