Hawaii Attorney General Doug Chin
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The federal judge in Hawaii who initially halted enforcement of President Trump's revised travel ban on Thursday said that questions about the administration's current enforcement of the executive order should be directed to the Supreme Court, which allowed the ban to go into effect in part.
US District Judge Derrick Watson, who issued an injunction stopping large portions of the ban from going into effect, denied Hawaii's request to further clarify his injunction in the wake of the Supreme Court's late June order allowing partial enforcement of the travel and refugee bans.
Watson did not, however, rule on the merits of Hawaii's request, instead ruling that the questions Hawaii posed related not to his initial injunction but instead to the Supreme Court's subsequent order narrowing the injunction.
"To be clear, the standard Plaintiffs ask this Court to clarify—i.e., 'a credible claim of a bona fide relationship with a person or entity in the United States,'—is not set forth in any order of this Court," Watson wrote. "Because Plaintiffs seek clarification of the June 26, 2017 injunction modifications authored by the Supreme Court, clarification should be sought there, not here."
The highly deferential order from Watson followed rulings from both appellate courts to review his injunction that resulted in narrowing of the injunction. While Watson initially barred enforcement of the entire sections of the executive order relating to the travel ban and refugee ban, the US Court of Appeals for the Ninth Circuit narrowed that slightly — allowing enforcement of internal review procedures called for in the order but keeping the actual bans on hold.
On June 26, the Supreme Court announced it was narrowing the injunction even further, allowing the bans to be enforced partially while the justices review the case — but not against those with "a credible claim of a bona fide relationship with a person or entity in the United States."
The bans went into effect at 8 p.m. June 29. In the hours before, the State Department and Department of Homeland Security made public information about how the administration was interpreting that phrase. Initially, those with a "close familial relationship" — what counted as an exempted "bona fide relationship" with a person — included only "a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half."
It did not include "grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-laws and sisters-in-law, fiancés, and any other 'extended' family members."
This led Hawaii to go to Watson's court seeking clarification of his injunction, as amended by the Supreme Court's order.
As the ban went into effect, it soon became clear the administration had shifted its view on "fiancés" — moving them into the "close familial relationship" category. The federal government has not shifted any of the other relationships.
The administration also maintains that, for refugees, having established connection with and received assurances of support from a resettlement agency is not a sufficient connection with an entity to count as a bona fide relationship. In addition to the Hawaii plaintiffs, the plaintiffs in a lawsuit brought by the PARS Equality Center in federal court in Washington, DC, have challenged that decision by the administration. PARS Equality Center's request remains pending.
For now, though, Hawaii's request was denied by Watson, although he left open the possibility of the state asking the Supreme Court to rule on the clarification request.
Hawaii Attorney General Doug Chin did not immediately say what the state will be doing next — although he made clear they will keep trying to have a court review the administration's interpretation of the Supreme Court's order.
"While we understand Judge Watson’s direction to address our request to the United States Supreme Court, we must evaluate that against the normal course of order as it relates to appeals and the clarification of injunctions. Whatever course it takes, we will get this resolved," Chin said in a statement, noting, "The scope of the travel and refugee bans badly needs to be resolved and not just according to the Trump Administration’s interpretation."
Notably, while Watson did defer to the Supreme Court on Thursday, he also suggested he would gladly take back the case if the justices so desire.
"Of course, if the Supreme Court wishes for this Court to decide the merits of the issues raised by Plaintiffs’ Motion in the first instance, this Court will promptly do so," Watson wrote in a closing footnote in his order.
The key part of Thursday's ruling:
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