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U.S. Asks SCOTUS For Travel Ban Stay

Back in September, the 90-day travel ban on immigration from six particularly problematic countries expired, and in October the Supreme Court dismissed the challenges to the ban as moot.  See posts of September 24, September 26, October 10 and October 24. As envisioned in the original executive order, the short-term ban was replaced by a more detailed, considered rule based on the ability and willingness of the countries at issue (a somewhat different set from the prior six) to provide the information needed to vet those seeking entry.

Despite the marked differences in the orders, a U.S. District Judge in Hawaii granted a temporary restraining order against enforcement of the key section except as to Venezuela and North Korea. A single district judge, it seems, is now better suited than the Department of Homeland Security to determine if the means chosen by DHS, in consultation with the Departments of State and Defense, is a good fit to the end to be achieved on a matter of national security and foreign relations. Or at least he thinks he is.

The government consented to the conversion of the TRO to a preliminary injunction to make it appealable. The Ninth Circuit stayed the injunction, with the major exception of "foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States." That is a hole you can drive a truck through (a truck loaded with explosives), so the government has asked the Supreme Court for a complete stay.
The exception is quoted from the Supreme Court's stay order in the original travel ban case, but the Ninth Circuit gave no reason for using the same exception in this very different case.

The Supreme Court and its individual justices have authority to stay lower court orders in cases that will be subject to the Court's review, even if the case isn't ready for merits review yet.  Now that the high court finally has electronic filing, we get the papers immediately, and the stay application is available here.  The application docket is Trump v. Hawaii, No. 17A550.

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