Battling The Ban

The Legal Fight Over President Trump’s Muslim Ban Heads To The Supreme Court

The pace of the legal battle over President Donald J. Trump’s Muslim ban remained brisk over the summer.

On June 26, the U.S. Supreme Court announced it will review two of the cases involving Trump’s executive order that bans travelers from six Muslim-majority countries. The high court is scheduled to hear arguments on Oct. 10 in Trump v. Hawaii and Trump v. International Refugee Assistance Project.

Until the cases are heard, the justices said the ban – which had been halted by federal courts across the country – could take effect, but only in part. It could not be applied to those who have “a credible claim of a bona fide relationship with a person or entity in the United States.” One type of “bona fide relationship” that would qualify someone for entrance into the U.S. was “a close familial relationship,” the court said.

A few days later, the Trump administration issued guidance regarding which familial relationships it considered to be “close”: parents, children, siblings, parents-in-law and fiancés could enter the country, but grandparents and grandchildren, aunts and uncles, nieces and nephews, brothers- and sisters-in-law, and cousins would be excluded.

Americans United and allied organizations were quick to denounce what came to be called the “Grandma Ban,” and the plaintiffs in the Hawaii case challenged the government’s narrow definition of close family members. The plaintiffs also asked the courts to affirm that an estimated 24,000 refugees who are already working with U.S.-based resettlement agencies should be considered to have a “bona fide relationship” and allowed to enter the country.

On July 13, U.S. District Judge Derrick K. Watson in Honolulu, who had originally blocked the second Muslim ban from taking effect in March, ruled that extended family members and refugees already working with resettlement agencies had “bona fide” relationships and thus couldn’t be barred entry by the Trump ban.

“Common sense, for instance, dictates that close family members be defined to include grandparents,” Watson wrote. “Indeed, grandparents are the epitome of close family members. The Government’s definition excludes them. That simply cannot be.”

The Trump administration challenged Watson’s decision, and on July 19, the Supreme Court issued a brief order affirming Watson’s ruling with respect to family members – meaning extended family members could not be denied entry by the ban.

“It’s clear that the Trump administration treated grandparents as not having a close relationship to their grandchildren simply to bar more Muslims from entering the United States,” said AU Executive Director Barry W. Lynn. “We are glad that the Supreme Court, like most Americans, saw through this cruel policy.”

The news wasn’t so positive for the refugees already working with resettlement agencies: The high court declined to affirm Watson’s ruling. Instead, the Trump administration’s appeal will be heard by the 9th U.S. Circuit Court of Appeals – a court that twice blocked the Muslim ban from going into effect at all. (The appeals court had not ruled as Church & State went to press.)

Also pending at press time was the government’s response to a Freedom of Information Act (FOIA) request sent by AU and allies Muslim Advocates, the Southern Poverty Law Center, the Brennan Center for Justice and Penn State Law Professor Shoba Sivaprasad Wadhia.

The groups requested information about implementation of other elements of Trump’s travel-ban executive order: “extreme vetting” policies targeting certain visa applicants, and a worldwide review of visa-vetting and screening processes intended to identify additional countries to add to the list of targeted nations.

“Extreme vetting measures have already been put in place in consulates and embassies around the world, and evidence suggests these measures are making it harder for Muslims to travel to the United States,” AU and allies said in a joint statement on July 20. “The request comes in light of the requesting organizations’ concerns that the administration is using the ‘extreme vetting regime as a means of implementing a Muslim ban away from the spotlight of court cases and media coverage.’”

Americans United continues to challenge the Muslim ban on several fronts. AU has filed friend-of-the-court briefs in both of the cases that will be reviewed by the Supreme Court, as well as in three other related lawsuits. AU also joined allies in filing a lawsuit, Universal Muslim Association of America v. Trump, which highlights how the ban harms the American Muslim community.

“Religious freedom – the right to believe or not as one sees fit, without the threat of discrimination – is a fundamental American value,” said Lynn. “This ban flagrantly violates that right.”