They argued that it was inappropriate to grant a stay of the ruling that would “have the effect of disposing of the issue under review” when the high court is set to hear arguments on the merits of President Trump’s travel ban in October.
“No statute or precedent authorizes the Government to obtain a stay of a judgment that this Court will never have an opportunity to review,” Hawaii’s attorneys wrote in a brief filed Tuesday.
Hawaii was responding to the Trump administration’s request that the high court block an appellate court ruling issued last week that would require the U.S. to admit any refugees who are already working with non-profit resettlement agencies in the country.
The 9th Circuit ruling had been set to take effect Tuesday.
The Trump administration has for months been battling to defend the president’s executive order, which was intended to pause for 90 days all entry to the U.S. from six countries identified as high risks for terrorist travel and for 120 days all refugee admissions.
In June, the Supreme Court ruled that the administration could not enforce the ban against people who have a “bona fide” relationship with people or entities in the United States. But the justices declined to define what constituted such a close relationship.
But the 9th Circuit opinion found that refugees who have been assigned to resettlement agencies had established enough of a “relationship” with a U.S. entity to qualify for a waiver from the ban. Another portion of the decision said that grandparents, nieces, nephews and cousins of people already in the U.S. should be exempted from the travel ban because they are considered to have a “close” enough relationship. The ruling would have paved the way for about 24,000 refugees to enter the U.S.
Hawaii’s attorneys said the refugee portion of the travel ban “functionally inoperative” as the Trump administration claimed in its filing.
“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 attorneys wrote.
They encouraged the Supreme Court to leave the 9th Circuit ruling in place, arguing that the question under review will become moot after the court hears broader arguments on the legality of the travel ban on Oct. 10.
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