Supreme Court won’t let Trump travel ban hit grandparents

The Supreme Court has rejected the Trump administration’s effort to subject foreigners who are grandparents or cousins of Americans to the president’s travel ban executive order, but the justices will allow the administration to block many refugees for now.

The Trump administration said grandparents, cousins, uncles and aunts did not qualify for a travel ban exemption, which was required by the high court for foreign citizens with close ties to U.S. people or institutions. But a federal judge in Hawaii disagreed with the administration’s interpretation and ordered officials to exempt a broader set of relatives.

The Hawaii judge also said refugees assigned to a U.S. resettlement organization were exempt from the ban. However, the justices put that part of the decision on hold Wednesday pending an appeal. That means the administration can block many refugees as long as they lack other U.S. ties, like relatives here or connections to a U.S. company, school or organization.

The latest version of President Donald Trump’s travel ban executive order sought to put a 90-day hold on issuing visas to citizens of six majority-Muslim countries and halt refugee admissions from around the globe for 120 days.

Two federal appeals courts struck down aspects of Trump’s order, but the Supreme Court agreed in June to allow Trump to enforce the travel ban for the time being as long as people with U.S. ties were exempt.

The court said last month it would hear arguments this fall on the legality of Trump’s policy. Shortly after the latest order emerged Wednesday, the high court announced those arguments will take place Oct. 10.

The new ruling handed the Trump administration a partial victory in the sense that the Justice Department prevailed in part of what it was seeking from the high court. But the operative version of Trump’s travel ban policy is now a far cry from what he originally ordered in January. The once-broad order is now subject to a slew of limitations and exclusions imposed by courts or adopted by the administration in the face of legal challenges.

The White House did not immediately respond to a request for comment.

Justice Department spokesman Ian Prior said his agency “looks forward to presenting its arguments to the Ninth Circuit.”

Hawaii Attorney General Doug Chin, whose office filed the suit that led to the broadest injunction, said the Supreme Court order was another rebuke to the White House.

“This confirms we were right to say that the Trump Administration over-reached in trying to unilaterally keep families apart from each other, in violation of the Supreme Court’s prior ruling,” Chin said in a statement.

The high court’s order Wednesday echoed a divide first seen among the justices last month. Three Republican appointees — Justices Clarence Thomas, Samuel Alito and Neil Gorsuch — said they would be more deferential to the administration and allow it to bar grandparents, cousins and the like.

In June, the same three justices joined an opinion saying that Trump’s order should be allowed to take force in full while the Supreme Court considers the legal issues.

The flip side of that is that six justices — the four Democratic appointees plus Chief Justice John Roberts and Justice Anthony Kennedy — seem to be trying to forge a consensus that allows Trump to carry out some of his policy but dulls its impact on foreigners with U.S. connections.

“To me the centerpiece here is that the lines seem to be drawn,” University of Texas law professor Stephen Vladeck said. “Today’s order says to me we’ve got pretty firm camps on both sides. There’s a majority that wants to split the baby and there are three who don’t. … [The majority] were faced with two poles and once again they chose a middle route.”

Former director of U.S. Citizenship and Immigration Services Leon Rodriguez said he also sees a signal being sent to the Trump White House that its policy is unlikely to score a clean victory if the justices rule on the merits.

“I think it reflects a concern on [the justices’] part that what the administration did here was way too broad for whatever national security objectives there may have been,” said Rodriguez, now a partner at the Seyfarth Shaw law firm.

Rodriguez said he was disappointed that the justices didn’t leave in place the exemption the Hawaii judge ordered for refugees assigned to U.S. aid groups.

“Many of them make pretty significant investments at the behest of and with funding from the U.S. government to be able to accept and sponsor and support these refugees,” he said.

Several analysts said the signals from the high court increase the possibility that the case may never be argued or decided on the merits. The 90-day period for the six-country ban is set to run out in late September and the refugee halt is scheduled to expire soon thereafter. The justices also said last month they want the parties to address in their briefs whether the dispute could be moot.

One possibility is that the Trump administration announces in September or October that it has devised “extreme vetting” procedures that improve U.S. security but don’t require a flat-out ban on visa issuance. In addition, Trump will get authority on Oct. 1 to set a new cap on refugee admissions.

“My suspicion is that at least six justices in the putative majority would be very happy not to reach the merits, or at least three or four of the six would,” Vladeck said. “They would love not to have the issue forced. … They’ve scheduled the case in a way that it could very well be moot by the time they sit down to hear it in October.”

Dodging a decision on the merits would mean the justices don’t have to confront difficult issues like whether the travel ban is a thinly disguised version of the Muslim ban Trump promised during the campaign and whether campaign rhetoric should be taken into account by judges when they assess an officeholder’s official acts.

While backing down seems to be at odds with Trump’s usual bluster, he could publicly claim vindication from the Supreme Court’s two orders that were partially in his favor and then assert there is no need to battle the issue out at the high court.

“This has great potential to be a ‘declare victory and go home’ scenario,” Rodriguez said.

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