Supreme Court justices said Wednesday that the Trump administration could temporarily reinstate restrictions on refugee resettlement, but that it could not limit the kinds of “close” family members exempt from a ban on visitors from six mostly Muslim countries.
Legal experts said the mixed directive was another sign that the court’s conservative wing is far from being in lockstep with the administration as it considers the case over the limits to executive power on immigration and national security.
The justices overruled a Hawaii federal judge less than a week after he said tens of thousands of refugees could come into the country despite President Trump’s travel ban, which applies to refugees from any country.
But they agreed with the judge in saying that the government could not block close relatives, such as grandchildren who want to visit grandparents living in the U.S.
The high court’s one-paragraph order gave no reasoning for its decision, and said it was up to the U.S. 9th Circuit Court of Appeals to further consider which refugees and family members are included in the ban before justices hear arguments on the executive order Oct. 10.
Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch said they would have let the government further restrict the kinds of “close” family exempt from the ban. The same justices — considered the most conservative on the court — dissented from the court’s June decision to revive the travel ban with exceptions for certain travelers, saying the ban should be brought back without changes.
Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy are also conservatives, though Kennedy is considered a swing vote on the issue.
“We can certainly start to read the tea leaves,” said Jessica Levinson, a professor at Loyola Law School in Los Angeles. “The most conservative of the conservatives on the court have been consistent on the travel ban. But three is not a majority.”
Levinson cautioned that justices had not heard arguments over the ban yet, and could decide by the end of the next term that the issue was moot. That’s because Trump has presented his travel order as a temporary anti-terrorism measure while the government reviews vetting procedures.
Nicole Navas, a spokesman for the Department of Justice, said that the administration “looks forward to presenting its arguments to the 9th Circuit.”
Trump’s ban halts travel into the U.S. by nationals of Somalia, Syria, Sudan, Yemen, Libya and Iran for 90 days and stops all refugee resettlement for 120 days. Federal courts had blocked the order from January, when an original, broader version of it was signed, until the Supreme Court brought it back to life last month.
Since the revised ban went into effect June 29, the state of Hawaii has fought the Trump administration in federal courts over whom it includes. The Supreme Court allowed the ban as long as people with “bona fide” connections to the U.S., such as close family, employment, university admission or relationships with other institutions, were exempt.
The court mostly left those exceptions up to interpretation.
The government argues that the connections should include a parent, spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, fiance or fiancee, and parents-in-law.
But it says grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins and brothers- and sisters-in-law are not close enough to qualify for admission.
Lawyers representing Hawaii won an injunction limiting the travel ban after they challenged the government’s definitions in a Honolulu federal district court. The state, which is among those challenging Trump’s order in the Supreme Court, also argued that a refugee resettlement organization’s interactions with a refugee constituted a bona fide relationship. It said that about 24,000 refugees had formal assurances from resettlement agencies for relocation assistance. It said those relationships should be counted as a “bona fide.”
On July 13, one day after the U.S. hit a 50,000 cap on refugee admissions that blocked all refugees except those with close family in the country, U.S. District Judge Derrick K. Watson issued an order largely granting Hawaii’s requests.
The Department of Justice challenged his order in the 9th Circuit and in the Supreme Court.
But “the court refused to grant the government’s request to clarify its June ruling on close family relationships,” said University of Richmond law professor Carl Tobias.
Immigrant and refugee advocates had mixed reactions to Wednesday’s order.
"The International Rescue Committee is relieved for families — including grandmothers, grandchildren, and critical extended relations — who will now be able to find safety and stability in the United States because of today's clarification,” Hans Van de Weerd, the vice president for U.S. programs at the resettlement organization, said in a statement. “Further, the IRC hopes that resettlement agencies, which have prepared extensively for assured refugees' arrival and smooth adjustment, are found to qualify as bona fide relationships.”
An attorney representing the state of Hawaii, Neal Katyal, said on Twitter that the government’s request was “not properly” before the Supreme Court and that he was ready to keep fighting the Trump administration in the 9th Circuit.
“See you in court!” he tweeted.
Jaweed Kaleem is The Times' national race and justice correspondent. Follow him on Twitter, Facebook and Instagram.