President Trump’s travel ban is already headed back to the Supreme Court after a Hawaii judge late last week put severe limits on the administration’s ability to enforce the ban, forcing the Mr. Trump to seek again the help of the high court.
Attorney General Jeff Sessions called Judge Derrick Watson’s ruling a severe blow to basic constitutional divisions of power, saying the judge — who’d already been overturned in a previous travel-limits ruling — was trying to substitute his own national-security judgments for those of the president.
Mr. Sessions said it will be up to the justices to revive the policy and deliver yet another blow to Judge Watson, who just last month saw a previous anti-Trump ruling on limits on refugees and travel limits from six majority-Muslim nations overturned by the Supreme Court.
“The Supreme Court has had to correct this lower court once, and we will now reluctantly return directly to the Supreme Court to again vindicate the rule of law and the Executive Branch’s duty to protect the nation,” the attorney general said.
The Justice Department filed briefs late Friday night with the Supreme Court, which gave travel ban opponents until noon Tuesday to file their own response.
It’s the latest round in a legal battle that’s now stretched nearly six months, to the first days of the Trump administration. It’s also become a major early test of how the courts are treating the new, unconventional president.
Judges appointed by Democrats have been almost universally skeptical of Mr. Trump’s actions, digging behind them to try to spot Mr. Trump’s motives, while Republican appointees have been willing to take his executive orders on their face, finding they are similar to actions past presidents have taken.
The Supreme Court last month cut a middle ground, ruling 9-0 that Mr. Trump did, in fact, use valid, wide-ranging powers to decide who should be excluded from the U.S. But the justices said in cases where a potential traveler has “close” ties to the U.S., either through family or a business or school relationship, the U.S. persons’ rights must also be respected.
The court, with only vague guidance, left it to the administration to decide what those close relationships were.
Trump officials said only parents, children, siblings and engaged couples’ relationships qualified as “close” family. Opponents were furious and Hawaii went back to the same court that had earlier ruled against Mr. Trump — and been overturned by the Supreme Court.
Judge Watson initially said that it was up to the Supreme Court to clear up its ruling, but late Thursday he issued a new opinion ruling that the administration’s latest policy was too strict. He said grandparents, uncles, aunts, nieces, nephews and even cousins all count as “close” family and cannot be blocked from entering the U.S.
“Grandparents are the epitome of close family members,” the judge wrote.
He also ruled that potential refugees whose files have been shared with resettlement agencies in the U.S. are considered to have a “close” relationship and must be admitted, despite the country already having hit the 50,000 cap Mr. Trump imposed on refugees this fiscal year.
Andrew R. Arthur, a former immigration judge and now resident fellow at the Center for Immigration Studies, said under Judge Watson’s vision, it would be hard not to qualify for an exemption because of the ease of finding a family tie that would be approved.
“Judge Watson’s order does not limit this relationship to first or even second cousins,” he wrote in an online analysis. “Judge Watson’s order renders the Supreme Court’s decision all but a dead letter.”
In its legal filing late Friday, the Justice Department said Judge Watson’s ruling badly misconstrues the Supreme Court’s decision last month.
In that ruling the justices sought to strike a middle ground balancing Mr. Trump’s powers versus the rights of a select group of people in the U.S. Justice Department lawyers, though, said if Judge Watson is right, almost everyone can continue to travel to the U.S. despite the ban.
The Supreme Court was already slated to take up the case in October, but the Justice Department says it should step in earlier and “clarify” how far Mr. Trump can carry the travel ban now.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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