Appeals court and the travel ban...

Trump travel ban back in court Monday

Appeals court arguments are expected to focus on handling of refugees.

By JOSH GERSTEIN

President Donald Trump's travel ban will be back in court Monday, six weeks before the Supreme Court is scheduled to hold a showdown over the controversial order that remains partially blocked due to hard-fought legal challenges.

The prelude to this fall’s main event is set to take place in Seattle, where a three-judge panel of the 9th Circuit Court of Appeals will hear arguments about how broadly the ban can be implemented while both sides await a decision from the high court.

The dispute to be aired Monday is over orders the Supreme Court issued in June and July outlining who would and would not get a short-term reprieve from Trump's halt on immigration from six majority-Muslim countries and his ban on admission of refugees from across the globe.

“This will be the most important interpretation yet of what the Supreme Court said on June 26th,” said University of Texas law professor Stephen Vladeck.

The Supreme Court’s June order declared that Trump's directive couldn't be enforced, for now, against people with a "bona fide relationship" with a U.S. person or entity. Hawaii-based U.S. District Court Judge Derrick Watson ruled last month that the Trump administration was interpreting that exemption too narrowly by excluding people whose relatives in the U.S. are grandparents or cousins.

However, the 9th Circuit arguments are expected to center on which refugees are exempt from the ban. Watson agreed that refugees already assigned to U.S. resettlement agencies have enough of a tie to a U.S. organization to qualify for the exemption created the Supreme Court.

“Refugees—that really seems to be where the arguments are and where most of the focus will be,” said Melanie Nezer of HIAS, a refugee resettlement group.

The Trump administration is asking the 9th Circuit to overturn Watson and hold that a refugee group’s agreement to take a particular refugee isn’t enough of a connection to avoid Trump’s travel ban.

In July, the Supreme Court declined to disturb Watson’s ruling aiding grandparents and cousins, but put on hold the additional accommodation for refugees. That hold will expire once the 9th Circuit ruling takes effect.

“It’s hard to see how the July order isn’t at least a little bit of a thumb on the scale against the plaintiffs,” Vladeck said. “It’s just as obvious the court wanted to let the 9th Circuit decide the matter, so I don’t think it’s conclusive of what happens with that part of the injunction, but I still think it tilts the scales a little bit in favor of the government.”

It’s unclear just how many refugees have been blocked so far because they lack a family tie or other tie to the U.S., but are assigned to a resettlement agency. The process is complex and the Trump administration has had difficulty quickly turning the flow on and off.

About 50,900 refugees have been admitted during the current fiscal year, which ends in September. Trump tried to lower the cap for this year to 50,000, but Obama had set it at 110,000.

Court challenges have questioned Trump’s authority to make such a mid-year reduction, but there’s little doubt he has authority to set a new figure for the new fiscal year starting October 1. Refugee advocates are watching closely for that number.

The timing of the current travel ban order—which Trump billed as an anti-terrorism measure, but critics say amounts to invidious discrimination against Muslims—also adds new wrinkles to the litigation. The 90-day ban on issuance of visas to citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen expires September 24. So, that part of Trump’s policy could be expired by the time the case is argued at the Supreme Court on October 10.

The refugee halt is set to end a couple weeks after those arguments, so it could also be over before the Supreme Court rules.

Some observers say the Trump administration could even wrap up that ban early in a bid to scuttle the Supreme Court arguments or convince the justices to treat the case as moot.

The 9th Circuit arguments, set for 2 p.m. Pacific time Monday, will take place before the same three judges who issued a ruling in May that found Trump lacked the legal authority to issue the key parts of the travel ban order: Michael Daly Hawkins, Ronald Gould and Richard Paez. All three are Clinton appointees. Appeals arising from the same case are typically directed to the same panel of judges.

Each side is scheduled to have 20 minutes to present its case, although the judges often extend the time. Video of the session is expected to be streamed live on the 9th Circuit website.

Deputy Assistant Attorney General Hashim Mooppan of the Justice Department’s Civil Division is slated to argue against Watson’s interpretation of the Supreme Court’s order. The State of Hawaii, the lead plaintiff in the case, will be represented by Colleen Roh Sinzdak of law firm Hogan Lovells.