That is harsh, requiring a response by noon tomorrow. It may be that Justice Kennedy is not amused by the antics of the 9th Circus upholding the District of Hawaii on the basis of the District interpretation of the U.S. Supreme Court's interpretation.

Actually, it's months overdue. What took him so long?

I'd prefer that Texas and the other dozen states had moved ahead to have DACA stricken down. It was a mistake to let Trump give himself another six months extension on 0bama's unconstitutional power grab. And in 6 months, he'll almost certainly extend it again. So he'll end up being just as big a scofflaw as 0bama was.

It was a mistake to let Trump give himself another six months extension on 0bama's unconstitutional power grab. And in 6 months, he'll almost certainly extend it again. So he'll end up being just as big a scofflaw as 0bama was.

Power grab? Trump is actually attempting to realign US Constitutional objectives stripped away from Presidential Orders.

nolu assembled this material, wrote it all himself.

And the best you can do is show up to snipe at one of my comments (which was tangential, being about the DACA lawsuit)?

And the best you can do is show up to snipe at one of my comments (which was tangential, being about the DACA lawsuit)?

Yeah.

Trump is actually attempting to realign US Constitutional objectives stripped away from Presidential Orders.

Actually, DACA does not involve a presidential order. It was implemented by a DHS Memorandum signed by Janet Napolitano.

Didn't 0bama issue an executive memorandum telling Napolitano to implement DACA?

I don't see anything in Napolitano's memo that authorizes SS to issue SS numbers to these illegals. Or to issue work permits. Or to collect the self-funding DACA application fee (around $500). Or anything about a 2-year renewal of the DACA work/school permit, etc.

There is a lot more to DACA implementation than just this one memo from Napolitano.

We hear of DACA being implemented by executive order. This is an order to a cabinet official or agency to implement a particular policy and the onus falls on the president and a cabinet official or agency head who defies an executive order can expect to be fired for insubordination to the president. There are also executive memos, which are more like an authorization by the president for a cabinet official or agency to implement a policy but which does not directly order them to take that action. Then there is the rather vague "executive action" which seems like a very ver gray area of presidential power.

I think DACA was in the realm of "executive action" across a number of agencies. ICE, DHS, SSA and others were affected by this.

I kinda hate even mentioning this since it drags us further off-topic but the question does arise when you understand that 0bama never did issue an executive order in June 2012 to authorize DACA. You can find no end of articles telling us that he did so but no matching DACA EO in the Federal Register. The Federal Register only records executive orders, not executive memos or "executive actions".

That is harsh, requiring a response by noon tomorrow. It may be that Justice Kennedy is not amused by the antics of the 9th Circus upholding the District of Hawaii on the basis of the District interpretation of the U.S. Supreme Court's interpretation.

It still seems to me that Kennedy is just rapping the knuckles of the Ninth Circus for pushing their agenda. More along the lines of Kennedy being angry that a lower court rather blatantly defied a USSC ruling than that Kennedy has suddenly awakened to enforcing the rule of law. Kennedy seems to me more worried that the Ninth Circus respect the USSC, not that he disagrees with them fundamentally.

http://www.scotusblog.com/wp-content/uploads/2017/09/17A275-Trump-v.-Hawaii-App.-Stay-Resp..pdf

No. 16-1540 (16A-1191)

IN THE

Supreme Court of the United States

DONALD J. TRUMP, et al.,
Applicants,

v.

STATE OF HAWAII, et al.,
Respondents.

RESPONSE TO APPLICATION FOR A STAY OF THE MANDATE

September 12, 2017

[List of attorneys omitted.]

INTRODUCTION

The Government has returned to this Court, for the third time, to ask that it superintend the application of the injunction in this case. The first time the Government was here, on June 26, 2017, this Court set forth the legal standard that governs the injunction of Executive Order 13,780 (“EO-2”): Any foreign national with a “bona fide relationship” with a U.S. entity—that is, a relationship that is “formal, documented, and formed in the ordinary course”—is protected from EO-2’s travel and refugee bans. Trump v. Int’l Refugee Assistance Project (“IRAP”), 137 S. Ct. 2080, 2088 (2017). The second time, on July 19, 2017, the Court denied the Government’s request to “clarify” that the injunction does not apply to refugees who have received a formal assurance from a refugee resettlement agency, instead directing the Ninth Circuit to resolve the question. Order, Trump v. Hawaii, 16-1540 (U.S. July 19, 2017).

The Ninth Circuit faithfully applied both of those directives. It determined— after reviewing hundreds of pages of declarations and exhibits, conducting full briefing, and hearing oral argument—that a refugee has a “bona fide” relationship with a resettlement agency that signs a formal, written assurance to provide for her housing, food, and other essentials of life. And the Ninth Circuit rejected the Government’s invitation to treat this Court’s July 19, 2017 stay as the merits decision the Court had declined to issue; instead, it performed the diligent analysis that is expected of an appellate court.

[2]

Nonetheless, the Government is back. It now demands that, in addition to setting forth the legal standard and directing the Ninth Circuit to apply it, this Court must engage in its own factbound review of the refugee-resettlement process in order to determine for itself whether the lower courts correctly applied the established standard to the record. Moreover, it asks the Court to engage in this complex factual inquiry mere weeks before hearing this case on the merits— insisting that the Court devote its immediate attention to ensuring that every possible refugee is excluded.

That is not this Court’s role. The lower courts, not this Court, are “best qualified to deal with the flinty, intractable realities of day-to-day implementation of” the Court’s “constitutional commands.” United States v. Paradise, 480 U.S. 149, 184 (1987) (internal quotation marks omitted). The Court laid out a legal standard. The District Court and the Ninth Circuit diligently and correctly applied it. And contrary to the Government’s hyperbole, they have not rendered the stay “functionally inoperative”: The Government retains the authority to bar tens of thousands of refugees from entering the country, as indeed it has done for months. The lower courts have simply applied this Court’s standard to protect vulnerable refugees and the American entities that have been eagerly preparing to welcome them to our shores. The Government’s motion should be denied.

BACKGROUND

1. On June 26, 2017, this Court issued an order that stayed in part the Hawaii District Court’s injunction of Sections 2(c) and 6 of EO-2. This Court

[3]

approved of the manner in which the District Court had “balance[d] the equities” with respect to U.S. persons “who have relationships with foreign nationals abroad, and whose rights might be affected if those foreign nationals were excluded.” IRAP, 137 S. Ct. at 2087. But the Court held that the equities “do not balance the same way” for aliens “who have no connection to the United States at all,” and whose exclusion “does not burden any American party by reason of that party’s relationship with the foreign national.” Id. at 2088. Excluding such aliens, the Court explained, would “prevent the Government from * * * enforcing” EO-2 “without alleviating obvious hardship to anyone else.” Id.

The Court therefore “narrow[ed] the scope of the injunctions.” Id. It held that Section 2(c) “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” Id. For “individuals,” it explained, “a close familial relationship is required”; foreign nationals “like Doe’s wife or Dr. Elshikh’s mother-in-law[] clearly ha[ve] such a relationship.” Id. “As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2.” Id. As examples of foreign nationals with such relationships, the Court listed “students * * * who have been admitted to the University of Hawaii,” “worker[s] who accepted an offer of employment from an American company,” and “lecturer[s] invited to address an American audience.” Id.

The Court also explained that the same “equitable balance” applies to EO-2’s refugee provisions, and thus prohibits the Government from invoking Section 6(a)

[4]

or (b) to bar refugees with whom “[a]n American individual or entity * * * has a bona fide relationship,” such that the American individual or entity “can legitimately claim concrete hardship if that [refugee] is excluded.” Id. at 2089.

2. Three days after this Court’s ruling—and after repeatedly rebuffing respondents’ requests for any information about its plans—the Government issued guidance concerning its interpretation of this Court’s stay. As relevant, the Government interpreted the term “close famil[y]” as limited largely to an alien’s immediate family, and so excluded grandparents, grandchildren, aunts, uncles, nieces, nephews, siblings-in-law, and cousins. The Government also stated that a refugee who had received a formal assurance from a refugee resettlement agency lacked a “bona fide relationship” with a U.S. entity sufficient to fall within the scope of this Court’s stay.

Plaintiffs filed a motion in the District Court requesting that it modify its injunction to make clear that the Government was barred from enforcing EO-2 against these individuals. On July 13, 2017, the District Court granted the requested relief. It explained that the Government’s definition of close family “finds no support in the careful language of the Supreme Court or even in the immigration statutes on which the Government relies.” Hawaii v. Trump, --- F. Supp. 3d ----, 2017 WL 2989048, at *5 (D. Haw. July 13, 2017). It further explained that a formal assurance from a resettlement agency “meets each of the Supreme Court’s touchstones” for a “bona fide relationship”: “it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, * * * it is issued specific to

[5]

an individual refugee * * * , and it is issued in the ordinary course, and historically has been for decades.” Id. at *7.

3. The Government appealed the District Court’s decision to the Ninth Circuit and, at the same time, sought review of that decision directly in this Court. The Government asked the Court to “clarify” that its partial stay order did not protect grandparents, grandchildren, and other close relatives of U.S. persons, or refugees with a formal assurance from a resettlement agency. Petitioners’ Mot. for Clarification 19, Trump v. Hawaii, No. 16-1540 (July 14, 2017) (“S. Ct. Mot.”). In the alternative, the Government proposed that the Supreme Court issue a writ of mandamus or “construe [its] motion as a petition for a writ of certiorari before judgment, grant certiorari, and vacate the district court’s modified injunction.” Id. at 17-18. Lastly, the Government stated that “if the Court concludes that the court of appeals should address the correctness of the district court’s interpretation of this Court’s stay ruling in the first instance,” it should “grant a stay of the district court’s modified injunction pending disposition of that appeal” so as to “minimize the disruption and practical difficulties” the modified injunction would ostensibly cause. Id. at 39; see also Petitioners’ Reply in Support of Mot. for Clarification 3, 14-15, Trump v. Hawaii, No. 16-1540 (U.S. July 18, 2017) (“S. Ct. Reply”).

On July 19, 2017, this Court summarily denied the Government’s motion for clarification. Order, Trump v. Hawaii, No. 16-1540 (U.S. July 19, 2017). It also declined to grant mandamus or certiorari. But this Court granted in part the Government’s request for a stay pending appeal, stating that “[t]he District Court

[6]

order modifying the preliminary injunction with respect to refugees covered by a formal assurance is stayed pending resolution of the Government’s appeal to the Court of Appeals for the Ninth Circuit.” Id.

4. The Ninth Circuit held full briefing on the merits of the Government’s appeal. The appellate record consisted of hundreds of pages of declarations and exhibits, briefs from a resettlement agency and other interested parties, and numerous Government documents describing the resettlement and refugee admissions process. The court also conducted an oral argument on August 28, 2017.

On September 7, the Ninth Circuit issued a unanimous per curiam opinion affirming the District Court’s modified injunction in full. The court first concluded that the Government “unreasonably interpret[ed] the Supreme Court’s reference to ‘close familial relationship[s].” Add. 13 (quoting IRAP, 137 S. Ct. at 2088) (brackets in original). As the court explained, the Government’s definition of “close famil[y]” relied on “cherry-pick[ing]” certain provisions of the immigration laws that favored its position while ignoring others that did not. Add. 17. The court also deemed the Government’s cramped definition irreconcilable with this Court’s holding that “a mother-in-law is clearly a bona fide relationship.” Add. 15.

The Ninth Circuit further determined that refugees with a formal assurance from a resettlement agency have a “bona fide relationship” with a U.S. entity. The court explained that resettlement agencies engage in an “intensive process” to match refugees to resources “even before the refugee is admitted.” Add. 27. As the court noted: “These efforts, which the formal assurance embodies, evince a bona

[7]

fide relationship between a resettlement agency and a refugee, and further demonstrate the hardship inflicted on an agency if a refugee is not admitted.” Id. at 27-28. The Ninth Circuit agreed with the District Court that refugees with a formal assurance meet “the requirements set out by the Court”: They have relationships that are “formal, documented, and formed in the ordinary course, rather than for the purpose of evading” EO-2. Add. 31 (quoting IRAP, 137 S. Ct. at 2088).

The Ninth Circuit stated that its mandate would issue within five days. As it explained: “Refugees’ lives remain in vulnerable limbo during the pendency of the Supreme Court’s stay,” and “[e]ven short delays may prolong a refugee’s admittance.” Add. 35.

5. Four days later, the Government filed its motion in this Court, challenging only the portion of the Ninth Circuit’s decision regarding resettlement agencies. On September 11, Justice Kennedy stayed that aspect of the Ninth Circuit’s decision pending further order by Justice Kennedy or of the Court.

ARGUMENT

I. THIS COURT’S INTERVENTION IS UNWARRANTED.

The Government has returned to this Court, for the third time in as many months, to ask it to review the application of the Court’s interim stay judgment to a highly fact-intensive scenario that has already been considered in close detail by two lower courts. This Court does not typically involve itself in such matters— indeed, neither respondents nor the Government has identified any comparable instance in which this Court has reviewed the application of a stay pending appeal

[8]

to a set of facts. On the contrary, this Court has summarily rejected such requests. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 448 U.S. 905 (1980); see also Daniel B. v. O’Bannon, 588 F. Supp. 1095, 1102 (E.D. Pa. 1984) (explaining that the Pennhurst Court “declined to disturb [the lower courts’] interpretation of its stay”).

This case should not be the first. The primary form of relief the Government requests—a stay pending resolution of the underlying merits of the case—is categorically improper. No statute or precedent authorizes the Government to obtain a stay of a judgment that this Court will never have an opportunity to review. And the Government’s alternative request that the Court summarily reverse the Ninth Circuit’s factbound stay decision, one month before this Court hears the case on the merits, is equally inappropriate.

[snip]

Here are some links that may be useful for searching:

https://www.uscis.gov/archive/2014-executive-actions-immigration

https://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders

http://www.presidency.ucsb.edu/executive_orders.php?year=2017&Submit=DISPLAY

Didn't 0bama issue an executive memorandum telling Napolitano to implement DACA?

Not that I know of. He made an announcement in the Rose Garden informing the press of the implementing memorandum issued by Janet Napolitano.

We hear of DACA being implemented by executive order.

We sure do. We also hear of DREAMERs and the DREAM Act. There is not, and never has been, a DREAM Act. On three seperate occasions, a DREAM bill failed in Congress and never became an Act. Technically, DACA is Napolitano's Homeland Security effort. As you have pointed out, finding an actual authorization for many Obama Administration actions is a challenge.

I think DACA was in the realm of "executive action" across a number of agencies.

It just depends on how generically the term executive action is used. DACA is most definitely a policy of the Executive branch. At its core, that is all that DACA is — a policy statement. A memo from the Secretary of Homeland Security is an executive action. That is quite distinct from a Presidential Executive Order, or Presidential Executive Memorandum or Presidential Proclamation.

Consider the DHS implementing memo,

This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law. I have done so here.

It is all smoke and mirrors.

I kinda hate even mentioning this since it drags us further off-topic but the question does arise when you understand that 0bama never did issue an executive order in June 2012 to authorize DACA. You can find no end of articles telling us that he did so but no matching DACA EO in the Federal Register. The Federal Register only records executive orders, not executive memos or "executive actions".

I provided a link, above, where you can find Presidential Executive Orders, Presidential Memoranda, and Presidential Proclamations easier than mucking about in the Federal Register.

There is no Presidential Executive Order for DACA. It really was a policy statement of the Department of Homeland Security.

It still seems to me that Kennedy is just rapping the knuckles of the Ninth Circus for pushing their agenda.

It is hard to tell with the court. Kennedy could also be rushing it so he can kick the Trump administration to the curb quickly. I should think that whatever he is going to do, it should not take too long to get it done.

Maybe Kennedy is just feeling peckish toward the Ninth Circus. Someone should have clipped their wings decades back. They're a laughingstock and it is the job of the USSC to put them in their place.

Some withering prose in a USSC decision overturning another of their cases, disparaging their professionalism and juridical process would be a decent start. Toss in some cheap shots about politician wannabes hiding behind a black robe.

Let's try to get back on-topic.

TheRightScoop: Supreme Court PERMANENTLY blocks 9th Circuit ruling limiting Trump ban…

So yesterday when the SCOTUS said Trump could go on his merry way with his travel ban, they said it was temporary – now they’re saying he’s good all around. From the Hill: The Supreme Court agreed late Tuesday to lift restrictions on President Trump’s travel ban until further notice, allowing the administration to continue barring most refugees under the ban. Justice Anthony Kennedy on Monday temporarily blocked the part of the 9th Circuit Court of Appeals ruling that barred the government from prohibiting refugees that have formal assurances from resettlement agencies or are in the U.S. Refugee Admissions Program from entering the U.S. Take THAT, Ninth Circuit!! Kennedy issued the stay pending the receipt of a response from the state of Hawaii, which was due by noon on Tuesday. Late in the day, the court issued an order blocking the decision indefinitely. In a one-page order, the court said the application for stay of a mandate presented to Kennedy and by him referred to the court is granted. The Supreme Court is still gonna take up the case in October, so even this permanent block is temporary, BUT all signs point to their decision going in favor of Trump’s ban….

So it sounds like Kennedy had the backing of the full Court or at least 4 conservative colleagues to constitute a majority. It would seem to me, amateur observer that I am, that some of the Left justices must have tried to challenge Kennedy's ruling yesterday or there would have been no further hearing late today from the full Court on Kennedy's stay order. They would have just let it stand as is.

Anyway, I couldn't resist posting the follow-up...

You beat me to it.

In a brief ORDER, the requested stay was granted. This means at least four other justices joined with Justice Kennedy. Oral arguments are set to start October 10th.

https://www.supremecourt.gov/orders/courtorders/091217zr_h3ci.pdf

(ORDER LIST: 582 U.S.)

TUESDAY , SEPTEMBER 12 , 2017

ORDER IN PENDING CASE

17A275 (16-1540)

TRUMP, PRESIDENT OF U.S., ET AL. V. HAWAII, ET AL.

The application for stay of mandate presented to Justice Kennedy and by him referred to the Court is granted, and the issuance of the mandate of the United States Court of Appeals for the Ninth Circuit in case No. 17-16426 is stayed with respect to refugees covered by a formal assurance, pending further order of this Court.

You beat me to it.

I have to admit, I'm feeling pretty smug.

What now? Wait for a month until the Supremes hear it, then another six months to learn the result (assuming the Court doesn't ultimately turn against Trump's EO in which case they would probably release the stay)?

So, a question related to my previous post.

If the Supremes hear the case in October but don't announce the result until next June or so, doesn't that mean that Trump gets an uninterrupted 6-month freeze on these visas and refugees when he only was after a 90-day freeze in his EO?

Hence my question about whether the justices might, after deciding the case, announce the results early to remove the stay if they don't decide in Trump's favor? I'm sure cases with stays involved have been before the Court many times but I don't recall hearing that they released a stay even if they decided a case that would overturn a stay order.

I suppose it is academic now. The Court seems likely to have already tipped its hand by backing Kennedy's stay. The only way Trump's EO fails now is if Anthony Kennedy himself turns against it, always a possibility.

If the Supremes hear the case in October but don't announce the result until next June or so, doesn't that mean that Trump gets an uninterrupted 6-month freeze on these visas and refugees when he only was after a 90-day freeze in his EO? ... The only way Trump's EO fails now is if Anthony Kennedy himself turns against it, always a possibility.

It appears safe until SCOTUS says otherwise. It may take more than Kennedy. There were two other Orders yesterday in which the redistricting orders of the District Court were stayed. Each specifically noted that Ginsburg, Breyer, Sotomayor and Kagan JJ. would deny the application. It is at least possible that the unstated majority in the Trump case may have been greater than 5-4.

SCOTUS - Texas redistricting Orders of August 15, 24 stayed

https://www.supremecourt.gov/orders/courtorders/091217zr3_4g15.pdf

(ORDER LIST: 582 U.S.)

TUESDAY, SEPTEMBER 12, 2017

ORDER IN PENDING CASE

17A245

ABBOTT, GOV. OF TX, ET AL. V. PEREZ, SHANNON, ET AL.

The application for stay presented to Justice Alito and by him referred to the Court is granted, and it is ordered that the order of the United States District Court for the Western District of Texas, case No. SA-11-CV-360, entered August 24, 2017, is stayed pending the timely filing and disposition of an appeal to this Court.

Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application.

https://www.supremecourt.gov/orders/courtorders/091217zr2_ba7d.pdf

(ORDER LIST: 582 U.S.)

TUESDAY, SEPTEMBER 12, 2017

ORDER IN PENDING CASE

17A225 ABBOTT, GOV. OF TX, ET AL. V. PEREZ, SHANNON, ET AL.

The application for stay presented to Justice Alito and by him referred to the Court is granted, and it is ordered that the order of the United States District Court for the Western District of Texas, case No. SA-11-CV-360, entered August 15, 2017, is stayed pending the timely filing and disposition of an appeal to this Court.

Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application.

Those Lefty justices march in total lockstep.