The Supreme Court on Wednesday brokered a new compromise over President Donald Trump’s travel ban, saying the government for now may enforce tight restrictions on refugees but also must make it easier for people from six mostly Muslim countries to enter the United States.
The court’s terse order means the administration cannot impose a blanket prohibition on people from those countries who have grandparents, aunts and uncles and other relatives in the United States. The Trump administration has advanced a stricter interpretation of what kind of family relationships could entitle a person to receive a U.S. visa, but a lower court in Hawaii ruled that the criteria were too tight.
The Supreme Court’s action on Wednesday had two parts. In one, the justices said they will not disturb the lower court’s decision that expanded the definition of close family ties.
But in another, the justice granted the government’s request to put on hold a part of the lower court’s order that would have made it easier for more refugees to enter the country. That order could have granted granted entry to about 24,000 refugees who were already working with resettlement agencies.
Wednesday’s unsigned, one-paragraph order gave no reasoning for the Supreme Court’s action. Three justices – Clarence Thomas, Samuel Alito and Neil 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 Justice Department reacted to the action only by saying it “looks forward to presenting its arguments to the 9th Circuit.”
Hawaii Attorney General Douglas Chin said the court’s action “confirms we were right to say that the Trump Administration over-reached in trying to unilaterally keep families apart from each other.”
The National Immigration Law Center said that while “family unity won today,” it will continue to litigate “to ensure that refugees can find the shelter they were offered by settlement agencies in the United States.”
The court’s decision was the latest development in the Trump administration’s nearly six-month effort to temporarily shut down the nation’s refugee program and bar visitors from several Muslim-majority countries while officials examine vetting procedures.
The Trump administration has said the effort was needed to protect the country. Challengers have fought the ban as an unconstitutional effort at keeping out Muslims, which Trump had advocated during the presidential campaign.
The latest version of the ban bars visitors from Iran, Libya, Somalia, Sudan, Syria and Yemen. These restrictions and the refugee ban had been put on hold by lower courts.
The Supreme Court will consider the merits of the challenge to the administration’s travel ban on Oct. 10. In the meantime, the court said last month that the ban could go in effect and be applied to those without a connection to the United States, but that people with a “bona fide relationship” with a person or entity in the United States must be exempted from the ban.
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 Trump administration interpreted the Supreme Court’s requirement of a “close familial relationship” to be a parent, spouse, fiance, son or daughter, sibling, son-in-law or daughter-in-law in the United States. The government would continue to bar refugees who had an offer from a refugee resettlement operation.
The challengers went back to U.S. District Judge Derrick 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.
The administration 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 as applied both to those who sought visas and refugees, 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.