Justice Department is asking the Supreme Court to overrule a decision by a Hawaii federal judge that broadened the exception to a temporary travel ban from six Muslim-majority countries that have been deemed likely hotbeds for radical Islamic terrorism.
The Hawaii judge, Derrick Watson, expanded the exception to the ban from close relatives (parents, children, and siblings) to virtually all relatives, including grandparents, uncles, nephews, and cousins.
Attorney General Jeff Sessions called Watson’s decision the latest in a series of intrusions of the judiciary into executive powers.
“Once again, we are faced with a situation in which a single federal district court has undertaken by a nationwide injunction to micromanage decisions of the co-equal Executive Branch related to our national security,” he said in a July 14 statement.
The Trump administration has fought lower courts over the president’s executive order that pauses travel from Syria, Sudan, Somalia, Libya, Iran, and Yemen—countries identified by the previous administrations as “countries of concern” for either promoting terrorism or whose governments are uncooperative or too chaotic to allow reliable background checks on their citizens.
After five months of court disputes, a June 26 Supreme Court ruling allowed the 90-day travel ban go into effect, while the legal dispute stemming from lower courts continues.
The Supreme Court, however, carved out an exception for those with a “credible claim of a bona fide relationship with a person or entity in the United States.”
What Counts as Bona Fide?
“For individuals, a close familial relationship,” would count as a bona fide relationship, the court stated. “As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the travel ban].”
The ban also prevents refugees (of any origin) from entry for 120 days, but they can also take advantage of the “bona fide” exception.
The administration defined the “close familial relationship” as parent, spouse, fiance, son, daughter, son-in-law, daughter-in-law, or sibling.
Watson, on July 13, expanded it to grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins.
While the judge argues grandparents are close relatives, the administration argues cousins are not.
“By this decision, the district court has improperly substituted its policy preferences for that of the Executive branch, defying both the lawful prerogatives of the Executive Branch and the directive of the Supreme Court,” Session’s statement reads. “The Supreme Court has had to correct this lower court once, and we will now reluctantly return directly to the Supreme Court to again vindicate the rule of law and the Executive Branch’s duty to protect the nation.”
It is not clear how fast will the Supreme Court will act. The court’s nine justices are currently on a three-month summer recess and will hear arguments in the case in October. In the meantime, the administration can get a clarification from the Supreme Court that would overrule Watson’s decision specifically on broadening of the exception.