By Robert Barnes,
The Supreme Court on Wednesday once again compromised on President Trump’s travel ban, saying the government may enforce tightened restrictions on refugees for now but also must allow into the country more travelers from six mostly Muslim countries who have family members already here.
The short order from the court means that the administration must continue to accept those with grandparents, aunts and uncles and other relatives in the United States. The Trump administration had set a stricter interpretation of who could be allowed in under a Supreme Court decision issued last month.
The court’s action on Wednesday had two parts. In one, it said it will not disturb a lower court’s decision that expanded the definition of close family ties.
But in another, it granted the government’s request to put on hold a part of the decision that would have made it easier for more refugees to enter the country.
The unsigned, one-paragraph order gave no reasoning for either decision. Three justices — Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — said they would have granted the administration’s request to put the entire order on hold.
The majority said the government’s appeal of the lower court should go through normal channels, with the next stop at the U.S. Court of Appeals for the 9th Circuit.
The court’s decision was the latest action in the Trump administration’s nearly six-month effort to temporarily shut down the nation’s refugee program and bar visitors from several Muslin-majority countries while it examines vetting procedures.
While the Trump administration has said the effort was needed to protect the country, challengers have fought it as an unconstitutional effort to ban Muslims, which Trump had advocated during the campaign.
The latest version banned visitors from Iran, Libya, Somalia, Sudan, Syria and Yemen. It and the refugee ban had been put on hold by lower courts.
The Supreme Court on June 26 said it would consider the merits of the challenge in the fall, and in the meantime struck a compromise: The ban could go in effect regarding those without a connection to the United States, but people with a “bona fide relationship” with a person or entity in the United States must be exempted.
The justices did not define such a relationship, but gave examples of what would qualify for the exemption: a close relative in the United States, a spot in an American university, a job offer or speaking engagement.
The three dissenting justices who would have let the administration’s ban go into effect without restriction predicted it would prompt more litigation, and it did.
The Trump administration interpreted the close relative portion of the court’s opinion to refer only to people with a parent, spouse, fiance, son or daughter, siblings, son-in-law or daughter-in-law in the United States. It would continue to bar refugees who had an offer from a refugee resettlement operation, which covers about 24,000 waiting refugees.
The challengers went back to U.S. District Judge Derrick K. Watson of Hawaii, who had earlier issued a nationwide injunction against the ban. Watson ruled last week that the government’s “narrowly defined list” of exemptions was not supported by either the Supreme Court decision or by the law.
“Common sense, for instance, dictates that close family members be defined to include grandparents,” Watson wrote. “Indeed, grandparents are the epitome of close family members. The government’s definition excludes them. That simply cannot be.”
He extended the exemptions to include those with grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law. Watson wrote that refugees with an assurance from a resettlement agency are also exempt from the ban.
The Justice Department asked the Supreme Court to stay Watson’s ruling.
His interpretation of what kinds of family relationships qualify “empties the court’s decision of meaning, as it encompasses not just ‘close’ family members, but virtually all family members,” the administration said in its brief to the court.
“Treating all of these relationships as ‘close familial relationships’ reads the term ‘close’ out of the court’s decision,” it said.
It added that Watson’s ruling would cover virtually all refugees.
The state of Hawaii, which has led the challenge of the travel ban, told the justices that the government’s argument was “nonsense.”
Any rule that maintained grandparents are not part of a close familial relationship was suspect, the state said in its brief to the court.
“That argument is as wrong as it sounds, and nothing in this court’s opinion, the immigration laws, or common sense supports it,” the state wrote.
It said 85 percent of awaiting refugees would still be covered by the ban, and said those who had been promised help by resettlement agencies had been comprehensively vetted.
Hawaii said it was inappropriate for the Supreme Court to get involved at this point of the litigation. But the government countered that only the justices could clarify what they meant.
“The stark division between the parties’ interpretations — and the practical need for immediate clarity — likewise warrant this court’s intervention now,” the government said.
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