Latest Brief Filed in Hawaii v. Trump

Hawai‘i filed its reply yesterday, Wednesday, July 12, 2017, in response to the Trump Administration’s arguments regarding the scope of the partial travel and refugee bans allowed by the United States Supreme Court in Hawaii v. Trump.

A previous request (see below) by Hawai‘i to federal district court Judge Derrick K. Watson to clarify the scope of the partial bans in light of the Supreme Court’s decision was declined by Judge Watson on July 6 (see below).

On appeal, the Ninth Circuit Court of Appeals on July 7 (see below) left open the possibility that the federal district court could instead entertain a request from Hawai‘i for injunctive relief. That evening, Hawai‘i filed a new motion with Judge Watson seeking such relief.

A copy of the reply memorandum filed yesterday can be downloaded.

July 7, 2017: Hawai‘i Pursues Injunctive Relief in Travel Ban Litigation

On July 7, 2017, the Ninth Circuit Court of Appeals issued an order in Hawaii v. Trump explaining that it lacked jurisdiction to address the State of Hawai‘i and Dr. Ismail Elshikh’s appeal of federal district court Judge Derrick K. Watson’s order denying the motion to clarify the scope of the travel and refugee bans.

The Ninth Circuit also said, “Plaintiffs may seek injunctive relief from the district court.”

Later that evening, plaintiffs did that.

“We have returned to the steps of the court that first stopped the revised travel and refugee bans,” said Attorney General Doug Chin. “It is an ancient saying that we should never tire of doing what is right and at the proper time, the right result comes. I intend to follow that principle.”

Following the Ninth Circuit’s instructions, Hawai‘i filed a motion on July 7 to enforce, or in the alternative, to modify the preliminary injunction originally issued by Judge Watson. The memorandum in support of Hawai‘i’s motion, filed with the Hawai‘i federal district court, states in part:

Just over three months ago, this court issued an injunction that prevented untold harms that would otherwise have been inflicted by an unconstitutional and unlawful Executive Order. The Supreme Court stayed that injunction in part … [b]ut it left in place the core of the Court’s injunction, and so preserved the rights of plaintiffs and the American public. One week ago, when the government announced plans to violate that injunction … the State of Hawai‘i and Dr. Elshikh immediately sought to vindicate their rights and those of their fellow citizens.

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[T]he Ninth Circuit has stated that there is an alternative, viable route for this court to prevent these brazen violations of its order. This court, it explained, “does possess… the authority to enjoin against… a party’s violation of the Supreme Court’s order placing effective limitations on the scope of the district court’s preliminary injunction.”

Plaintiffs respectfully request that this court follow the path the Ninth Circuit laid out. It should enjoin the government’s bald attempts to thwart the Supreme Court’s and this court’s will. In the alternative, plaintiffs respectfully request that this court modify its injunction to make clear that the government’s current course of conduct is unlawful. One thing is clear: This court should not permit the government to flout its directives at the expense of countless Americans and their loved ones, and it possesses the authority to prevent the government from so doing.

Download a copy of the motion and memorandum.

July 7, 2017, 1:54 p.m.: Ninth Circuit Rules District Court Has Ability to Interpret and Enforce U.S. Supreme Court’s Order

A three-judge panel of the Ninth Circuit Court of Appeals issued an order on the afternoon of July 7 in response to today’s filing by the State of Hawai‘i asking the Ninth Circuit to review the scope of the travel and refugee bans in Hawaii v. Trump.

The Ninth Circuit’s order explained it lacks jurisdiction to address the State of Hawaii and Dr. Elshikh’s appeal of Judge Watson’s order denying the motion to clarify the scope of the injunction, because Judge Watson’s order denying the motion to clarify was not a final judgment nor immediately appealable. According to the court, “[b]ecause the “practical effect” of Plaintiffs’ requested relief is declaratory in nature—not injunctive—we do not construe their clarification motion before the district court as one for injunctive relief. And this scenario does not present an order of “practical finality” because … Plaintiffs may seek injunctive relief from the district court.”

Of critical importance, the Ninth Circuit said in part:

[W]e note that … the district court … does possess the ability to interpret and enforce the Supreme Court’s order, as well as the authority to enjoin against, for example, a party’s violation of the Supreme Court’s order placing effective limitations on the scope of the district court’s preliminary injunction … Because the district court was not asked to grant injunctive relief or to modify the injunction, we do not fault it for not doing so.

“Today’s Ninth Circuit ruling makes clear that Judge Watson does possess the ability to interpret and enforce the Supreme Court’s order, as well as the authority to enjoin against a party’s violation of the Supreme Court’s order placing effective limitations on the scope of the district court’s preliminary injunction,” Attorney General Chin said. “We appreciate the Ninth Circuit for ruling so quickly and will comply.”

Download the Ninth Circuit order.

July 7, 2017, 7:56 a.m.: Ninth Circuit Dockets Hawai‘i Appeal Regarding Scope of Travel Ban

On July 7, 2017, the State of Hawai‘i asked the Ninth Circuit Court of Appeals to review the scope of the travel and refugee bans in Hawaii v. Trump after federal district court Judge Derrick K. Watson declined to grant Hawai‘i’s motion for clarification.

On June 26, 2017, the United States Supreme Court agreed to hear arguments in October regarding this case. In a 6-3 decision, the Court ordered that while arguments were pending, people from the six Muslim-majority countries with no connection to the United States may not enter the country, but those with a good faith connection to a U.S. individual or entity may enter. The same standard applies with respect to refugee admissions. Hawaii alleges that the Trump Administration’s guidelines issued on June 29 are overly restrictive and do not comply with the Supreme Court’s ruling. That same day, Hawai‘i asked the federal district court to clarify the Supreme Court’s order.

The July 7 order from Judge Watson declined to address the merits of the request and suggested that Hawai‘i instead seek clarification from the Supreme Court. Judge Watson also stated that he would rule on the merits if instructed to do so by the higher court.

The motion was directed to the Ninth Circuit Court of Appeals for first review. This tracks the ordinary process for appeals within the federal courts and is done to indicate to the Supreme Court that Hawaii followed proper procedures in the courts below. Both district courts and courts of appeal routinely interpret Supreme Court decisions.

“We are now in the middle of a 90-day partial travel ban,” Attorney General Chin said. “The Trump Administration has reserved the option to extend or even expand the travel ban at the end of it. Many felt the balance struck by the Supreme Court was nuanced and fairly reasonable, but the Trump Administration has flouted the Supreme Court’s order from the start. What happens in the next several weeks matters a lot if the administration is not subject to the checks and balances of the courts.”

The motion states in part:

Parties seeking to clarify or enforce an injunction—even an injunction that has been partially stayed by the Supreme Court—must seek relief in the first instance from the district court that issued it. That is precisely what the State of Hawaii and Dr. Elshikh did when they became aware that the Government intended to flagrantly violate the injunction against the President’s thinly veiled Muslim bans. They had obtained the injunction from the District Court of the District of Hawaii to protect their own constitutional and statutory rights, as well as the rights of the citizens of the State of Hawaii and the United States as a whole. They therefore returned to that District Court to ensure that injunction was followed and their rights were vindicated. But the District Court refused to grant this relief, making the assertion—endorsed by no party—that Plaintiffs must seek relief directly from the Supreme Court.

That is wrong. For over a week, the Government has been unlawfully excluding foreign nationals and thereby inflicting irreparable harm on the American individuals and entities with whom they have relationships. For over a week, the Government has been ignoring the dictates of the Judicial Branch, fashioning and imposing a new Muslim ban wholly divorced from any national security rationale. Every day that passes is a day when our Government is turning away human beings—from newborn children to elderly grandparents—whom the injunction requires to be admitted. It is therefore incumbent on this Court to fulfill its traditional role by reversing the District Court’s erroneous holding and issuing the injunctive relief necessary to ensure that Plaintiffs’ statutory and constitutional rights are protected in the manner intended by the District Court, this Court, and the Supreme Court itself.

Download the Ninth Circuit emergency motion filing.

July 7, 2017, 5:25 a.m.: NIAC Statement on Court’s Failure to Intervene on Travel Ban’s ‘Grandparent Ban’

Shayan Modarres, legal counsel for the National Iranian American Council, issued the following statement after the U.S. District Court for the District of Hawai‘i denied a challenge to the Trump Administration’s narrow interpretation of who will be exempt from the Muslim ban:

“We regret that the U.S. District Court for the District of Hawaii refused to clarify or limit which familial relationships are to be considered “bona fide” or good faith relationships. Grandparents, uncles, aunts and other close family relatives will continue to be banned from seeing their relatives in the United States, labeled–under President Trump’s Muslim ban–as potential terrorists. This is an outrageous and inhumane interpretation by the Trump administration, and we hope common sense will ultimately prevail despite the district court’s decision last night.

“There is palpable fear in the Iranian and Muslim community in the United States. The Supreme Court will hear the Muslim ban case this fall, and a ruling is looming. There is also the potential for future constitutionally-offensive executive orders. Communities are scared that they will continue to be targeted for no reason other than where they are from and what faith they practice.

“It is abundantly clear that we cannot rely on the courts to intervene in the place of our elected officials. We would not need to rely on judicial intervention if our elected representatives showed backbone to Trump and stepped up to protect their constituents and defend fundamental American principles.”

The National Iranian American Council is a nonpartisan, nonprofit organization dedicated to strengthening the voice of Iranian Americans and promoting greater understanding between the American and Iranian people. We accomplish our mission through expert research and analysis, civic and policy education, and community building.

July 6, 2017: Federal Court Declines to Rule on Request to Clarify Scope of Travel Ban

Hawai‘i federal district court Judge Derrick K. Watson denied on July 6, 2017,  the State of Hawai‘i’s motion to clarify the scope of the injunction regarding the travel and refugee bans in Hawaii v. Trump.

In its order, the court specifically did not address the substance of either party’s arguments regarding the proper scope of the injunction. Rather, the order focused exclusively on the procedural question regarding which court is the appropriate forum to decide the merits of Hawai‘i’s motion.

“The key takeaway from Judge Watson’s order is that he declined to address the specific merits of our request to clarify the scope of the injunction of the travel and refugee bans,” Attorney General Doug Chin said. “The scope of the travel and refugee bans badly needs to be resolved and not just according to the Trump Administration’s interpretation. While we understand Judge Watson’s direction to address our request to the United States Supreme Court, we must evaluate that against the normal course of order as it relates to appeals and the clarification of injunctions. Whatever course it takes, we will get this resolved.”

A copy of the order can be downloaded here.