- - Wednesday, July 19, 2017


The more the U.S. Supreme Court equivocates on deciding what President Trump’s attempt to regulate the admission of refugees to the United States actually means, the more the court becomes the U.S. Court of Supreme Confusion. Lawyers are supposed to use precise language to reflect precise thinking, but often they don’t.

The Court has been dueling since March with a federal district judge in Hawaii, Derrick Watson, a gift of Barack Obama, who obviously doesn’t like President Trump’s travel ban or even the high court’s modifications of it.

The Supreme Court on June 26 said it would consider in October the merits of the challenge to the ban on immigration from six Middle Eastern countries which have been the source of violent immigrants, and until then it would allow the ban to stand, with exemptions for those with a “bona fide” relationship with a person or “entity” in the United States. The court did not define such a relationship, but cited several examples of what it meant, such as a close relative in the United States, a position at an American university, or even a speaking engagement somewhere in the states.

In rewriting the travel ban to accommodate the Supreme Court decision, the Trump administration considered a “close relation” to be a parent, spouse, fiance, son, daughter, siblings, son-in-law or daughter-in-law already in the United States.

This displeased Judge Watson in Honolulu, who is apparently a graduate of the Gilbert and Sullivan School of Law, and he expanded the category to include, as set out in the operetta “HMS Pinafore,” an immigrant’s “sisters and his cousins and his aunts.” Grandparents, too. Judge Watson issued another order reflecting this, instructing the Supreme Court justices to get with his program, and applied his decision to the entire 50 states, territories and presumably all the ships at sea. The three justices of the minority of the Supreme Court’s June 26 decision who wanted to keep the travel ban in effect until the court makes a final determination in the autumn, predicted — accurately, as it turns out — that the majority’s piecemeal approach would only invite litigation. The three dissenting justices were Clarence Thomas, Samuel Alito and Neil Gorsuch, strict Constitutionalists all.

The high court’s Wednesday order again compromised President Trump’s ban but it tried to strike another compromise, saying the administration can tighten restrictions on refugees for now, just not too tight, and must allow into the United States more refugees than the administration wants, particularly from the six nations that were first identified by the Obama administration as a source of trouble.

The high court in effect rebuked Attorney General Jeff Sessions for asking the court for a clarification of its confusing decisions, telling him to take his problems to the 9th U.S. Circuit Court of Appeals in San Francisco for instruction and adjudication.

Judge Watson played the grandmother card in his decision to expand the categories of close relations to include grandparents. “Indeed,” he wrote, “grandparents are the epitome of close family members.”

This is sentiment with a point, particularly in an increasingly dysfunctional culture where grandparents often become actual parents (who doesn’t like Granny?), but it obscures the most important point in the dispute. “[Judge Watson] has improperly substituted its policy preferences for the national security judgments of the executive branch in a time of grave threats,” the attorney general wrote of his earlier ruling, “defying both the lawful prerogatives of the executive branch and the directive of the Supreme Court. The district court has issued decisions that are entrusted to the executive branch, undermined national security, delayed necessary action, created confusion and violate a proper respect for the separation of powers.” It’s the judge who deserves a rebuke.

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