Court rejects Trump administration on travel ban exemptions – Politico
President Donald Trump’s travel ban policy suffered another defeat Thursday as an appeals court rejected the administration’s attempt to deny grandparents, aunts, uncles and cousins of Americans a temporary exemption from the controversial executive order.
A three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously declined to overturn a district court judge’s ruling that the administration was taking too narrow a view of an exception the Supreme Court carved out from the travel ban in June.
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The appeals court judges reasoned that since that the justices said the mother-in-law of one travel-ban challenger was entitled to a reprieve from the president’s order, other relatives should enjoy the same treatment.
“If mothers-in-law clearly fall within the scope of the injunction, then so too should grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins,” Judges Michael Daly Hawkins, Ronald Gould and Richard Paez wrote in a joint opinion. “The Government does not offer a persuasive explanation for why a mother-in-law is clearly a bona fide relationship, in the Supreme Court’s prior reasoning, but a grandparent, grandchild, aunt, uncle, niece, nephew, or cousin is not.”
The appeals court panel also cleared the way for a greater flow of refugees, declining to disturb a lower court order that those already assigned to resettlement agencies can enter the United States despite Trump’s directive.
Justice Department lawyers had argued that those agencies deal directly with the government and rarely have contact with refugees until around the time of their arrival, but the judges found that argument beside the point.
“Even if a resettlement agency does not have ‘direct contact’ with a refugee before arrival, this does not negate the finding that a relationship has formed. The agency still expends resources and arranges for individualized services based on the specific refugees that the agency has agreed to resettle,” the 9th Circuit panel wrote. “Resettlement agencies will face concrete harms and burdens if refugees with formal assurances are not admitted.”
A Justice Department official said Thursday night that the administration will again ask the Supreme Court to set aside the legal rulings that have largely gutted Trump’s policy.
“The Supreme Court has stepped in to correct these lower courts before, and we will now return to the Supreme Court to vindicate the executive branch’s duty to protect the nation,” a Justice spokeswoman said.
The revised travel ban Trump issued in March suspends issuance of U.S. visas to residents of six majority-Muslim countries and halts admission of refugees from across the globe. The Supreme Court has set arguments on the ban’s legality for October 10.
Asked about the appeals court decision, a White House official expressed confidence in the legal underpinnings of Trump’s directive.
“The president’s travel order is well within his legal authority and keeps our nation safe,” said the official, who spoke on the condition of anonymity. “The Department of Justice will vigorously defend it.”
The new appeals court ruling could effectively negate the travel ban’s application to refugees in the coming weeks, since about 24,000 are already assigned to U.S. resettlement organizations.
In July, the Supreme Court temporarily halted the lower-court ruling clearing the way for admission of more refugees, but the high court’s ruling expires by its own terms now that the 9th Circuit has ruled on the issue.
Now, the Trump administration seems intent on again asking the justices to address the definition of close family and to clarify which refugees are exempt under the high court’s June order.
The annual allocation of refugees runs through the end of the fiscal year at the end of this month. Trump could try to block the admission of any refugees after Sept. 30 by setting that number to zero or a low figure.
Obama had set the cap for this year at 110,000, although for budget and capacity reasons a much lower number of refugees were actually expected to be admitted. Trump attempted to lower the cap to 50,000 for this year, but court rulings have effectively blocked that move.
A lawyer handling the case decided Thursday, Neal Katyal, hailed the decision.
“The court of appeals has just sided with Hawaii (and constitutional freedoms everywhere) against Trump,” Katyal wrote on Twitter.
All three 9th Circuit judges who ruled on the travel ban exemption Thursday are appointees of President Bill Clinton. It’s the same panel of jurists that issued one of the two appeals court rulings earlier this year that Trump’s revised travel ban was likely illegal. By 9th Circuit policy, the same set of judges is usually assigned to recurring appeals arising from the same case.
Trump billed his initial travel-ban order, issued in January, and the revised edition, released in March, as anti-terrorism measures designed to protect Americans from threats posed by radical foreigners and to allow authorities time to improve vetting procedures. However, critics denounced the measures as thinly veiled versions of the Muslim ban Trump promoted and promised during his presidential campaign.
The Virginia-based 4th U.S. Circuit Court of Appeals accepted that argument in a May ruling against the revised travel ban, with the court’s majority concluding that the order amounts to intentional religious discrimination.
The California-based 9th Circuit’s decision, issued in June, dodged that issue, concluding that Trump failed to meet legal requirements and exceeded his statutory authority in issuing the directive.
The two key prongs of the revised travel ban are set to expire in the coming weeks, further complicating the legal picture. The 90-day ban on issuance of visas to citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen expires Sept. 24. So that part of Trump’s policy could be expired by the time the case is argued at the Supreme Court on Oct. 10. The refugee halt is schedule to end about two weeks later.