In an short order today, the U.S. Supreme Court declined to overturn last week’s decision and modified preliminary injunction issued by the Hawaii federal district court, which broadened the family exception that the Supreme Court itself had ordered to the implementation of President Donald Trump’s executive order banning travel and immigration from six Muslim-majority countries. However, the Court did overturn or “stay” the Hawaii district court’s broadening of the exception to the executive order’s temporary moratorium on refugee admissions based on relationships with refugee resettlement agencies.
The order is unusual because the Court is on its annual summer recess and very rarely makes substantive decisions during such recesses. The Court issued its decision on June 26 (the last day of its 2016-2017 term) to accept review of the two nationwide preliminary injunctions against the Muslim ban, but then essentially re-wrote the executive order by creating an exception for any individuals from the six Muslim-majority countries who have a “bona fide relationship with a person or entity in the United States”. In their dissent to that order, Justices Thomas, Alito, and Gorsuch predicted that this Court-created exception would result in additional litigation. After the Supreme Court decision, the U.S. government interpreted the exception narrowly to only include spouses, fiancés, parents, parents-in-law, siblings, and children, children-in-law.
The dissent’s prediction came true as the State of Hawaii and other plaintiffs challenged the narrow definition of family relationships. On July 13, the federal district court in Hawaii agreed and modified its preliminary injunction to comply with the Supreme Court’s decision but then 1) expanded the definition of family relationships to include grandparents, uncles and aunts, nephews and nieces, cousins, siblings-in-law, and grandchildren, and 2) included refugees who had an individualized “formal assurance” of resettlement (or sponsorship) from a refugee resettlement agency as bona fide relationships.
In today’s order, the U.S. Supreme Court declined to overturn the Hawaii district court’s expansion of the family relationship exception but did overturn the implementation of an expanded exception based on formal assurances from refugee resettlement agencies. Not surprisingly, the three justices who dissented from the Court’s original order on June 26 – Justices Thomas, Alito, and Gorsuch – would have overturned or stayed both expansions of the exception.
Ignatius Bau 