Employment Law Daily What is a ‘close family relationship?’ Trump Administration asks Justices to clarify for travel ban
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Wednesday, July 19, 2017

What is a ‘close family relationship?’ Trump Administration asks Justices to clarify for travel ban

By Pamela Wolf, J.D.

The Trump Administration has returned to the Supreme Court for relief that would allow further implementation of the president’s revised travel ban. On July 13, a district court in Hawaii entered an injunction preventing application of Sections 2(c), 6(a) and 6(b) of the revised travel ban (Executive Order 13,780) to exclude entry of grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States. In doing so, the district court invalidated the administration’s interpretation of the High Court’s June 26 stay of lower court injunctions to the extent they barred enforcement of those sections of the travel ban to foreign nationals who lack any “bona fide relationship with a person or entity in the United States” (See Court rejects Trump Administration’s definition of ‘close familial relationship’ for travel ban purposes, July 14, 2017).

What does it mean? At issue is what the Justices meant in Trump v. International Refugee Assistance Project by the term “close familial relationship” when discussing individuals who would remain outside the reach of the travel ban under injunctions issued by courts in Hawaii and Maryland. As the Trump Administration described it in its guidance, the term includes “a parent (including parent-in-law), spouse, fiance, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half, and including step relationships,” but not grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, and any other “extended” family members. The Hawaii district court that entered an injunction scrutinized first by the Ninth Circuit and then by the Supreme Court called the Trump Administration’s definition the “antithesis of common sense,” deeming grandparents the “epitome of close family members.”

Trump Administration doubles down. The Trump Administration immediately reacted to the district court ruling. “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,” Attorney General Jeff Sessions said in a statement. “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.

“The district court has issued decisions that are entrusted to the Executive Branch, undermined national security, delayed necessary action, created confusion, and violated a proper respect for separation of powers. 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.”

The administration contends that the district court’s modified injunction would virtually protect all family members from the reach of the travel ban. “Treating all of these relationships as ‘close familial relationship[s]’ reads the term ‘close’ out of the Court’s decision,” according to the administration’s motion for clarification of the High Court June 26 ruling.

Stay pending clarification. The administration is also seeking a temporary stay of the Hawaii court’s modified injunction, pending clarification of the June 26 Supreme Court order. The administration also asserts, among other things, that due to the “extraordinary circumstances” of the case, it is unnecessary to first seek a stay in the Ninth Circuit. Further, seeking clarification of the High Court’s order from the Ninth Circuit would cause unnecessary delay. The federal government is nonetheless filing a protective stay motion in the Ninth Circuit.

The case, Trump v. Hawaii, is No. 16-1540 (16A1191).

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