Various Democrat-led states and liberal interest groups sued after President Trump signed the EO in March, selecting court jurisdictions heavily stacked with left-leaning judges. Two of those cases have now been consolidated for oral arguments this October at the Supreme Court: Trump v. International Refugee Assistance Project and Trump v. Hawaii.
The Supreme Court’s unanimous decision granted the president a qualified victory on June 26, but one in which the Court said—over the objection of the three conservative justices—that the lower courts’ decision against the EO would be left in force for the time being for foreigners with a “bona fide relationship” to a person in the United States.
The State Department then sent a cable to U.S. embassies worldwide, defining “bona fide relationship” to include spouses, children, and certain other very close family members. Hawaii then filed a new motion in its ongoing case against the EO, arguing that the State Department’s definition is too narrow.
U.S. District Judge Derrick Watson sided with Hawaii, modifying his initial injunction, and ordering the government to operate according to Hawaii’s broader definition. Watson also ordered the federal government to continue accepting refugees once the government hit the EO’s refugee limit imposed by President Trump of 50,000.
U.S. Acting Solicitor General Jeffrey Wall asked the Supreme Court either to clarify the meaning of “bona fide relationship” from its first decision, or at minimum to stay the district court’s order while the Justice Department appeals Watson’s decision to the U.S. Court of Appeals for the Ninth Circuit.
The Supreme Court granted President Trump a partial victory on Wednesday, declining to clarify its original order, but staying Watson’s order requiring the U.S. government to continue accepting refugees in excess of 50,000.
Six justices declined to stay Watson’s expansion of “bona fide relationship.” Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch—the same three who would have given the president a complete victory in June—dissented from this part of the Supreme Court’s order, writing that they would stay the entirety of Watson’s decision.
“This the latest skirmish in the legal tug of war over Executive Order 13780, one in which President Trump continues to win when any given issue reaches the Supreme Court,” Klukowski told Marlow.
“What we are seeing is that the full Supreme Court gives the president a partial victory, while the three conservative justices have sided with President Trump 100 percent, saying—correctly in my view—that the law is completely on the side of the president in these lawsuits, and that the executive order should be upheld in its entirety,” Klukowski explained.
“This is once again a clash between two legal philosophies,” Klukowski continued, contrasting judges who accept that the Constitution commits questions of the national security aspects of immigration to the president and Congress, versus judges who insist on having a role to declare certain policies illegal.
Klukowski explained that the Supreme Court will hear arguments in the case during the first two weeks of October, and predicted a decision sometime in the late fall or winter.
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