//  9/7/17  //  Quick Reactions

Tonight, the Ninth Circuit entered an opinion affirming the latest preliminary injunction against President Trump’s travel ban.  In particular, it upheld Judge Watson’s rulings that the government may not exclude two groups:

(1) certain family members, including grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins;


(2) refugees who have received formal assurances from U.S.-based resettlement agencies.

For background, check this recent post by Sarah Mahmood. (If you’re interested in more general takes on the travel ban—and love reading wonky legal posts—look no further than our collection of expert analyses.)

In this post, I provide an editorialized summary of the Ninth Circuit’s ruling. Then I zoom out and offer some general reflections on the path ahead, the Supreme Court’s involvement, and where we’re at in this despicable, demoralizing affair.

Close Familial Relations

This wasn’t a hard question (except, apparently, to Trump’s own lawyers).

In June, the Supreme Court blocked enforcement of the travel ban “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” It explained that the ban could not be enforced against foreign national whose exclusion would burden an American party by inflicting “concrete . . . hardships.” As an example of a protected bona fide relationship, the Supreme Court referred to “close” familial relationships—as distinguished from cases where a foreign national has “no connection” with persons in the United States.  

As the Ninth Circuit delicately observed, Trump’s position that grandma should be excluded is flatly at odds with the Supreme Court’s logic:

The Government does not meaningfully argue how grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United Statescan be considered to have “no connection” to or “lack any bona fide relationship” with persons in the United States. Nor does the Government explain how its proposed scope of exclusion would avoid the infliction of concrete hardships on such individuals’ family members in the United States. Stated simply, the Government does not offer a persuasive explanation for why a mother-in-law is clearly a bona fide relationship, in the Supreme Court’s prior reasoning, but a grandparent, grandchild, aunt, uncle, niece, nephew, or cousin is not.

Lacking any argument based in reason or common sense, DOJ hid behind a rather peculiar invocation of the immigration laws. It insisted, with essentially zero plausibility, that the Supreme Court order impliedly (but secretly) referred to some complex and topically irrelevant provisions of the immigration code, which define “family” in a way that roughly approximates its narrow policy.

The Ninth Circuit didn’t buy it—and for good reason. First, those statutory provisions don’t actually use any of the key phrases that the Supreme Court invoked to spell out its standard. (Instead, they refer to “immediate relatives”). Second, the Court could have cited those provisions, but didn’t. Third, there are many other provisions of the immigration code that seem equally apposite and include broader definitions of familial relationships. As the Ninth Circuit remarked, “the Government offers no explanation as to why it relied on its selected provisions of the INA, while ignoring other provisions of the same statute as well as other immigration laws.” Finally, importing this particular part of the immigration code would contradict the Supreme Court’s stated reliance on “fundamental equitable considerations”—the purpose of which was to address “harms faced by persons in the United States based on the denial of entry of foreign nationals with whom they have bona fide relationships.”

The Ninth Circuit also invoked several Supreme Court precedents to shed light on the meaning of “close familial relationship,” reasoning that “these cases show how the denial of entry can cause concrete hardship to family members in the United States.” After reviewing several cases, it noted—correctly—that the Court has recognized “the importance of close relatives such as grandparents, aunts, uncles, nieces, nephews, and cousins.” Of course, it would make little sense for those relationships to be protected elsewhere but kicked to the curb here.

Refugees With Assurances

Next, the Ninth Circuit considered a tougher question: whether the Supreme Court’s order allows Trump to exclude refugees covered by formal assurances from U.S.-based resettlement agencies.

Here, DOJ argued that a formal assurance denotes the relationship between a resettlement organization and the Department of State, not a relationship between the organization and the refugee.  As a result, it contended, refugees themselves have no relationship with the United States or a U.S.-based entity.  

The Ninth Circuit disagreed, emphasizing (and describing at length) “the individualized screening process necessary to obtain a formal assurance and the concrete harms faced by a resettlement agency because of that refugee’s exclusion.” It noted that, under the Supreme Court’s order, a refugee has a bona relationship with an entity in the U.S. if that relationship is “formal, documented, and formed in the ordinary course rather than to evade the Executive Order.” Assured refugees, the panel concluded, possess such a relationship with U.S.-based entities: namely, resettlement agencies. Further, excluding assured refugees would inflict concrete harm on those agencies in two ways: “(1) tangible injuries through the loss of invested resources and financial support; and (2) intangible injuries from the inability to effectuate their spiritual and moral missions.”

DOJ further argued that protecting assured refugees would mean the Supreme Court’s stay would cover “virtually no refugee” because roughly 24,000 refugees already have assurances. Again, the Ninth Circuit disagreed. First, it noted that the Supreme Court’s decision “did not express concern about the number of refugees that would fall within the scope of the injunction.” And second, it found that DOJ’s assertion is “false”—noting that more than 175,000 refugees currently lack formal assurances and are thus suspended from entry by the travel bam.

Analysis & What Happens Next

Observing that “refugees’ lives remain in vulnerable limbo during the pendency of the Supreme Court’s stay,” the Ninth Circuit ordered that the mandate issue within five days.  Almost immediately, DOJ announced that it plans to appeal this decision to the Supreme Court. That means we’re likely in for another rapid-fire round of briefs, followed by a short and unreasoned order from the Court. If past is prologue, we can expect the Court to seek a compromise; based on its decisions thus far, I’d wager the Court will agree with the Ninth Circuit on “close familial relations” but reverse on the assured refugee decision.

It’s hardly obvious that DOJ should rush to the Supreme Court this time around. Key parts of the travel ban will expire in just a few weeks, and most of the rest will expire a few weeks after that. On October 10, assuming the case has not been mooted by then, the Supreme Court will hear argument on the basic question of whether the travel ban is lawful. Hustling to the Supreme Court for a hot take on the Ninth Circuit’s latest decision seems like a waste of everybody’s time.

I hope you won’t mind if I end this post on a slightly more personal note.

The original purpose of the travel ban was a quick “pause” so that the Executive Branch could review entry procedures and remedy some supposed deficiencies. Yet here we are, more than eight months later, arguing over whether the “temporary” ban should cover elderly grandmas for its last few miserable weeks of existence.

I’ve litigated this order for nearly six months now and I honestly have no idea what legitimate purpose it’s supposedly achieving today. All I know is that at every turn, even when doing so requires reading precedent or judicial orders with a miserly eye, this administration seems obsessed with excluding as many people as possible for as long as possible. You get the feeling that they’re running on animus auto-pilot, wholly unconcerned with why they’re doing what they’re doing. These are dazzlingly talented lawyers devoting hours of their time to soulless briefs, all to prop up “security” claims widely reported (and understood) to be a sham.   

It’s painful to watch. Not only as a lawyer who cares about the Constitution, but as a citizen appalled by the gratuitous suffering that this order has inflicted (and that it continues to inflict). Eight months into this litigation, caught in the rhythm of brief writing and argument, it’s easy for all this to feel routine. But it isn’t, not at all. This is an animus-laden campaign promise given awful life; blocked by lower courts in a vindication of the First Amendment and the rule of law; and then partly revived/rewritten by the Supreme Court in a bare-bones compromise ruling that frankly makes little sense

And now what? We’re condemned to battle the zombie-like remains of this cruel order as it shuffles about the world for just a few more weeks, ruining lives and embarrassing our tradition of religious liberty. 

Espinoza and the Continued Evisceration of the Establishment Clause

7/1/20  //  In-Depth Analysis

Espinoza leaves us with a gluttonous Free Exercise Clause, and a starved Establishment Clause.

Espinoza v. Montana Department of Revenue – Requiem for the Establishment Clause?

7/1/20  //  In-Depth Analysis

Those who still believe that the Constitution precludes state involvement in promoting religious thought and experience now have some work cut out for them

Ira C. Lupu

George Washington University Law School

Robert W. Tuttle

George Washington University Law School

Religious Discrimination And Racial Discrimination

6/30/20  //  Quick Reactions

The Court’s decision in Espinoza is similar to the trajectory of the law of racial discrimination in some respects, it also offers a striking contrast in others

Leah Litman

Michigan Law School