This column by ACRU General Counsel Ken Klukowski was published November 13, 2017 by Breitbart.
President Donald Trump’s new immigration policy is partially back in force as of late Monday, but only until the U.S. Court of Appeals for the Ninth Circuit can decide the case’s merits.
This litigation started as a challenge to the president’s temporary travel restrictions, first found in January’s Executive Order 13769 and later in March’s Executive Order 13780. Two federal trial courts blocked the policy. The Ninth Circuit and another federal appeals court affirmed those injunctions, but the Supreme Court reversed those decisions for the most part, putting most of the policy in effect while the litigation continued.
On September 24, President Trump announced America’s permanent immigration policy in Presidential Proclamation 9645, superseding the challenged executive order provisions. Not long after, the Supreme Court vacated (i.e., threw out) both lower-court decisions, and dismissed both bases.
But the litigation continued back in the district courts, now challenging Presidential Proclamation 9645.
Judge Derrick Watson of the U.S. District Court for the District of Hawaii once again issued a preliminary injunction blocking President Trump’s policy, which by historical standards would be regarded as a shocking intervention by federal judges into an area where the Constitution affords them almost no role.
The Sessions Department of Justice (DOJ) is appealing that ruling on an expedited basis to the Ninth Circuit. DOJ also asked for an emergency stay of Watson’s injunction while the appeal is underway.
A three-judge panel of the Ninth Circuit granted that motion in part and denied it in part.
“The injunction remains in force as to foreign nationals who have a close familial relationship with a person in the United States,” such as grandparents and grandchildren, the court said in a very short two-paragraph order.
In all other respects, the San Francisco-based appeals court granted the stay to block the injunction while the appeal is being heard, allowing most of the president’s policy to go into effect immediately.
The emergency stay lasts only until the court issues a full decision on the appeal, which is being briefed and argued on a rapidly accelerated schedule.
The case is Hawaii v. Trump, No. 17-17168 at the U.S. Court of Appeals for the Ninth Circuit.