WASHINGTON, DC — Supreme Court Justice Anthony Kenndy stepped into the fracas over President Donald Trump’s executive order travel ban on six Muslim-majority countries once again Monday, staying an injunction from the United States Courts of Appeals for the Ninth and Fourth Circuits at the request of the Department of Justice.
The DOJ’s request for a stay came after the Ninth Circuit upheld another preliminary injunction limiting the effect of the ban Friday. Justice Kennedy moved quickly, granting the stay only hours after the DOJ filed its brief Monday. The stay will remain in place while the ban’s opponents file a response, due at noon Tuesday.
After the Supreme Court allowed significant portions of Executive Order 13780 — the second Trump administration travel ban — to go forward over the rulings of the Fourth and Ninth Circuits in June, the anti-ban plaintiffs asked those courts to interpret the Supreme Court’s order loosely. This allowed a much broader category of travelers from the Muslim-majority countries to enter the United States while the case awaits hearing at the Supreme Court.
The liberal Ninth Circuit quickly obliged, issuing a preliminary injunction preventing the federal government from excluding “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in United States.”
Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch all warned that the unspecific language of the original Supreme Court intervention would lead to the kind of decision the lower courts eventually issued, taking some of the teeth out of the ban while the case pends before the nation’s highest court.
The Department of Justice’s request for a new stay hit the Ninth Circuit for refusing to properly take into account the Supreme Court’s order clarifying the first stay, writing, “The court of appeals did not even attempt to reconcile its decision with this Court’s July 19 Order. Instead, the court of appeals deferred to the district court’s interpretation of this Court’s June 26 stay ruling.”
The DOJ further argued that the Immigration and Nationality Act specifies a much narrower definition of “close family relationship” than the one the Ninth Circuit and district judge Derrick Watson approved.
The fate of Justice Kennedy’s stay will be decided by the full Court after the plaintiffs file their response. The final question of the travel ban is still slated to be answered at the Supreme Court’s fall session in Trump v. Hawaii, No. 16–1540 — now joined to Trump v. International Refugee Assistance Project, No. 16–1436, the other major travel ban case.