The Ninth Circuit ‘Resistance’

The Supreme Court rebukes judicial defiance on the Trump travel ban.


The Ninth Circuit Court of Appeals Courthouse in San Francisco, Calif., Feb. 8.
The Ninth Circuit Court of Appeals Courthouse in San Francisco, Calif., Feb. 8. PHOTO: DAVID PAUL MORRIS/BLOOMBERG NEWS

Some federal judges have joined the “resistance” to President Trump, but the Supreme Court doesn’t seem happy about it. See the Court’s pithy rebuke Monday to the Ninth Circuit Court of Appeals, which last week defied a Supreme Court decision on the Trump travel ban.

In June the High Court allowed most of Mr. Trump’s executive order temporarily suspending refugee admissions and visas for travelers from six countries pending legal challenges. The Court carved out an exception for foreigners with a “credible claim of a bona fide relationship with a person or entity in the United States.” For instance, those with children or parents in the U.S. or who have been admitted to American universities.

Federal Judge Derrick Watson in July effectively enjoined the Trump travel ban in toto—and overruled the Supreme Court’s order—by extending the “bona fide” exemption to grandparents, aunts, uncles, nieces, cousins, brothers-in-law as well as refugees with no claim on the U.S. The judge held that refugee resettlement agreements between nonprofits and the federal government could constitute a formal relationship. But if the Supreme Court had intended an exception for refugees, it would have said so. 

A Ninth Circuit panel—all Bill Clinton appointees—upheld Judge Watson, but the Justice Department asked the Supreme Court to stay the ruling. Justice challenged only the Ninth Circuit’s decision applying to refugees, which it argued “would as a practical matter render” the Supreme Court’s decision a “dead letter.”

The Supreme Court seems to agree, judging by Justice Anthony Kennedy’s one-sentence order staying the Ninth Circuit ruling. The order allows the Trump Administration and Hawaii Attorney General to submit arguments on whether refugees can claim a “bona fide” relationship by virtue of their resettlement agreements. These arguments can be fleshed out next month when the High Court hears challenges to the travel ban on the legal merits.

Appeared in the September 12, 2017, print edition.

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