Wednesday, July 19, 2017

Latest on the Travel Ban legal nonsense.

So to recap the latest chain of events:
  • On June 26th The USSC stayed the multiple lower court decisions that declared the travel ban unconstitutional, effectively allowing the Government to implement the travel ban. To that main degree, the court was unanimous.
  • However, the USSC determined that the ban could not include anyone with a "bona-fide relationship" within the United States. Three Justices (Thomas, Alito, Gorsuch) dissented, suggesting that the ban should be allowed without conditions. 
  • The Government put the ban into effect, and the DOJ restricted a "bona-fide relationship" to immediate family members: fathers, mothers, brothers, sisters, and in-laws of the same relation. 
  • The State of Hawaii went back to court (to the original Hawaii Judge who order the ban unconstitutional), asking that Judge "clarify" the "bona-fide relationship" portion of the USSC ruling. They argued that the DOJ restriction were a violation of his original order and that the DOJ was not following the intent of the USSC ruling. The Justice refused to clarify, saying it was not his place to clarify the USSC order.
  • The State of Hawaii appealed that ruling to the 9th Circuit Court, who remanded it back to the original Judge with the opinion that if the plantiffs asked for an injuction (rather than clarification) that the lower courts did have authority to clarify the USSC ruling. They made it quite clear that if this Judge didn't act to do so, that they would. 
  • The State of Hawaii went back (again) to the District Judge asking for an injuction, providing the Judge with a variety of areas where they believed the DOJ got the defintition of "bona-fide relationship" wrong. The District Judge ruled in their favor on two of the areas, ordering the DOJ to include grandparents, aunts, uncles, and cousins as part of "bona-fide close family relationship"  as well as declaring that those refugees who were working with a refugee group had a "bona-fide relationship" with that group. 
  • The Government sent an appeal to both the 9th circuit court as well as an expedited appeal to the USSC asking them to stay the "new" court order of the District Judge.
About an hour ago, the USSC handed down a very short order that refused to "clarify" their own description of "bona-fide relationship" (as it pertained to close family), while also ordering a stay of the District Court's order that refugees working with a refugee group had a bona-fide relationship. The same three Justices dissented, believing (again) that the entire District Court order should have been stayed. 

The ruling also suggested that they are still expecting a ruling from the 9th circuit court as well. Not exactly sure what can possibly come of that... other than to agree with the District Judge on the point that the USSC didn't stay.  

I find the entire matter to be an exercise in logical futility. 

The one analysis I have seen is suggesting that the Government will push for a quick ruling from the 9th circuit so that the 9th circuit ruling can be appealed. This would imply that the court's refusal to "clarify" their own ruling was somehow tied to not finding it a strong enough case for expedition? Which would then suggest that the idea that refugees could have a bona-fide relationship with a refugee service was something that the court found to be a much stronger cause to expedite? 

I don't read anything like that in the two paragraph long decision. But then again, I don't understand why they made a point to suggest that they were still expecting the 9th to rule either. 

At the end of the day, the efforts of the state of Hawaii has forced the DOJ to expand their list of "close family members" to include Grandparents, Aunts, Uncles, and Cousins. All of their other requests (and there were several)  have been shot down either by the District Judge or the USSC. 

I still believe that as a matter of fundamental constitutional legal principal that the entire District Court decision should have been stayed, simply because it chose to re-rule on a case that the USSC had already ruled on. I think the Roberts Court (with one eye constantly on the politics of everything) is opening up a big can of worms by allowing this sort of circular chain of lawsuits to take place. Once they ruled, the entire thing should have ended. I believe that was the most important point that the Roberts Court could have made here. Their own credibility as the "Supreme" Court is at stake.


opie said...

WASHINGTON — The Supreme Court on Wednesday temporarily allowed the Trump administration to enforce restrictions on the nation’s refugee program, but it let stand a court order from Hawaii that grandparents and other relatives who want to travel to the United States to visit family must be admitted while the case proceeds on appeal.

The justices, in a brief order, rejected the administration’s request that it clarify the scope of their decision last month temporarily reinstating the ban but allowing people with “a credible claim of a bona fide relationship with a person or entity in the United States” to enter the country. The court said the United States Court of Appeals for the Ninth Circuit, in San Francisco, should address the question.

Seems to me Hi won and your histrionics lost. Sure gives me pause and how little we all know about law, especially you CH

C.H. Truth said...

The Supreme Court on Wednesday temporarily allowed the Trump administration to enforce restrictions on the nation’s refugee program, but it let stand a court order from Hawaii that grandparents and other relatives who want to travel to the United States to visit family must be admitted while the case proceeds on appeal.

Gee Opie... had you actually read my post, you would have seen that this is exactly what I wrote.

- That the USSC stayed the Hawaii court ruling that would have allowed Refugees to claim bona fide relationship with a refugee services...

- But did not clarify their previous ruling on bona-fide relationship as it pertained to close family members.


Of the two issues... the concept that a refugee could simply claim a relationship by contacting a refugee service was the much larger issue. That seemed to directly circumvent the USSC ruling and would have undermined the ban to a significant degree.

Hawaii lost to a big degree with that one, as did the District Judge.

The close family relationship "clarification" to include Grandparents, aunts, uncles, and cousins is technically less significant (at least in terms of numbers)... and did not necessarily specifically undermine the USSC ruling.

Hawaii won that portion... but make no mistake, they would have preferred to prevail on the former and lost on the latter if given the choice.


But the ridiculousness of including cousins in the definition of "close family" sort of makes you wonder which family members are outside of that subset? Not to mention, if the USSC said it wouldn't clarify their own ruling, then why allow a lower court to do so?

wphamilton said...

They passed the buck, back down the line, by refusing to clarify what the earlier ruling meant. And passed the buck on refugees down to the 9th Circuit.

I expected a logical stay on the District Court's injunction but I can understand why the Supreme Court ruled this way. You can't have every motion in the district case bumped up to the Supreme Court in some kind of parallel litigation. We're seeing a Constitutional clash, and as urgent as each pre-trial motion may be to the litigants, in American jurisprudence the shortcuts are not suffered lightly. Try the case - and if it finally makes it to the Supreme Court, there will be a showdown! That is the appropriate time to clarify the Constitutional issues.

opie said...

Gee Opie... had you actually read my post,

Bingo....You spend an awful amount of space to say I don't usually read your screeds, just skim them. The bottom line remains your BS the other day was just that, HI court decision was basically stayed, 180 degrees from what you argued, Now give me one compelling reason to read every word of yours with such a crappy track record. Too funny, even for you,.

Commonsense said...

You spend an awful amount of space to say I don't usually read your screeds

That much is obvious to say the least.

C.H. Truth said...

HI court decision was basically stayed

You do know that a higher court "staying" the judgement of the lower court is not a win for the lower court, but actually suspends the judgement of that lower court from taking effect?

You do know this, right?

C.H. Truth said...


I guess the USSC could have done three things:

1) They could have ruled as an expedited manner and left the 9th completely out.
2) They could have refused to rule at all, and simply waited for the 9th to rule before getting involved.
3) Or they could have done what they did, which was sort of something in between.

The only thing that really makes sense here is that their "stay" of the lower courts injunction on refugees is a shot across the bow to the 9th. Go ahead and rule on both issues, but we specifically want you to know that the District Court interpreted our ruling incorrectly in terms of refugees.

I think it would require a pretty hefty set of balls on whichever Judges from the 9th get this case, to turn around and agree with the District Court on that one.

I would argue that they punted on their "interpretation" issue. Of the legal bloggers I read that have commented on this (which is one) he believes that ultimately they (USSC) might still be willing to look at the "Close Family" issue once the 9th has ruled (presumably agreeing with the District Court).

I still wonder out loud "why" this is not a legal issue of authority. It's relatively straight forward why the Dept of Homeland Security has authority to rule on what "bona fide relationship" means. After all, they are the federal agency implementing it.

It's far more curious to me where the District Court feels that the State of Hawaii has any jurisdiction to provide a different definition, and expects that the Federal Government should abide by it.

After all, the District Judge did not use his own judgement to come up with a definition, but rather substituted the State of Hawaii's definition for the definition created by the DHS. Seems legally dubious. But what do I know?

wphamilton said...

It IS an issue of authority, but imagine yourself on the Supreme Court. Would you want to be giving a ruling on a lower court pre-trial injunction, then again after they change it a little, then again after that one was taken to the Appeals court and appealed again, and then another one from some California court, and so on until the trial itself was heard, appealed and finally bumped to the Supreme Court? Or would you rather see ALL of the lower court's deliberations, the arguments, their rulings, and rule at once on all of the issues of jurisdiction and authority?

I wouldn't be inclined to play anyone's game of piecemeal and do-overs.

C.H. Truth said...

Well WP...

I guess if you want to allow every district court in the country a chance to hack away at the USSC ruling and the DHS's implantation of it... then you simply let this Judge's decision ride.

Because then the state of California could get in on the action and ask something else to be interpreted by a different District Judg e. Then the State of Minnesota, and the State of New York, and so on and so forth.

Which State, do you suppose has the ultimate authority here? The first one to sue? The last one to sue? The largest state? One of the original 13 states? Which ever state comes first alphabetically?

Or the USSC could make a stand and let "EVERY" state understand exactly who has the authority to determine the definition of "bona-fide relationships" as it pertains to this EO being carried out by the DHS. I would think that most objective people would understand that to be an authority in the Federal Government (since it's a Federal order).

rrb said...

I wouldn't be inclined to play anyone's game of piecemeal and do-overs.

no rational person should be so inclined, but that's where we are.

the statute in question could not be more clear. the president does in fact possess the authority to ban folks from certain other countries from entering the US. the fact that we're even discussing this indicates that TDS has infected the judicial branch at every level. this whole issue should have been laughed out of court the day that the ACLU attorney declared that under the exact same circumstances under a president hillary clinton none of this would be in dispute and we would not be discussing it.

i would expect your garden variety childish liberal to react this way - suffering from a whopping dose of butthurt over losing an election - but grown up adult officers of the court?

it's bullshit, every anti-trumper on their side of the argument knows it's bullshit, and if the roberts - led USSC had an ounce of courage they'd tell the lower courts to sit the fuck down and shut the fuck up.

PNC said...

*As a matter of fundamental Constitutional legal principle*, neither the Trump administration nor the Supreme Court have any business deciding who is and who isn't a "close family member".

But Trump trash have no actual interest in Constitutional, limited government.