Michael C. Dorf // 7/14/17 //
Cross-posted from Dorf on Law
Judge Watson just issued an order and opinion granting the plaintiffs' request to enjoin the government's narrow interpretation of the SCOTUS interim ruling in the Travel Ban Litigation. Procedural junkies wondering how, given that just a week ago he denied that he had the authority: The prior motion sought "clarification" of the SCOTUS order; Judge Watson said only SCOTUS could clarify; the Ninth Circuit agreed but helpfully added that Judge Watson could grant specific injunctive relief; that's what he did.
The new order expands the list of relatives and others who count as "bona fide relationships" to include "grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States." It also overrules the Trump administration by classifying an approved refugee's relationship with a resettlement agency as bona fide. And the order disposes of the plaintiffs' other requests, granting some and denying others. We can expect an almost immediate appeal to the Ninth Circuit, which I expect, will not disturb the injunction, and if that happens, the DOJ will try to go back to the SCOTUS on an emergency basis. I won't hazard a prediction about whether the Court would disturb this injunction before it reconvenes in October.
Unless and until a higher court modifies this latest injunction, it will now fall to the Trump administration to implement it. Given its track record during the litigation up until now, I think there is no reason to fear systematic defiance. In the early days of Travel Ban 1.0, there appeared to be some such defiance from at least some Homeland Security personnel, but that was quite likely the result of insufficient guidance. While injunctions have been in place, the administration has pretty much abided by their letter.
The difficulty arises where there is wiggle room. Take the question of cousins. Undoubtedly a first cousin will be permitted to enter, but what about second cousins? First cousins once removed? Great aunts? In granting the plaintiffs' motion, Judge Watson did not reach that level of detail. In the current context, that strikes me as unfortunate--not because second cousins necessarily should count as bona fide close relationships, but because Judge Watson would actually take seriously the task of figuring out whether they do. By contrast, it is quite likely that the Trump administration will simply seize on whatever ambiguity there is in the latest injunction to deny entry to as many people as it can. Why? Because that is the point of the Travel Ban.
I don't want to appear to single out Judge Watson here. The plaintiffs probably should have been more detailed in their request for injunctive relief. And ultimately the Supreme Court itself is responsible for leaving the administration with wiggle room. Judge Watson deserves thanks for closing off much of it. I just wish he had gone even further