U.S. Supreme Court Justice Anthony Kennedy on Monday put a temporarily hold on limits imposed by a lower court on President Donald Trump’s order barring most refugees from entering the United States.
Kennedy acted in response to the U.S. Justice Department’s challenge to the part of a Thursday ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals that would let refugees from around the world enter the country if they have a formal offer from a resettlement agency.
Without Kennedy’s intervention, the appeals court decision would have gone into effect on Tuesday. Kennedy’s action gives the full Supreme Court time to consider the merits of the Trump administration’s emergency request in full. Kennedy asked refugee ban challengers to file a response by noon (1600 GMT) on Tuesday.
The administration did not ask the court to put on hold a separate part of the lower court ruling that exempted grandparents, aunts, uncles and cousins of legal U.S. residents from Trump’s ban on travelers from six Muslim-majority countries.
In the court filing, the Justice Department said the 9th Circuit’s decision on the refugee ban “will disrupt the status quo and frustrate orderly implementation of the order’s refugee provisions.” Up to 24,000 additional refugees would become eligible to enter the country than would be otherwise allowed, according to the administration.
The Justice Department’s filing marked the latest twist in the ongoing legal fight over Trump’s sweeping March 6 executive order that barred travelers from Iran, Syria, Libya, Somalia, Sudan and Yemen for 90 days, a move Trump argued was needed to prevent terrorist attacks. The same order included a 120-day ban on refugees from around the world.
The bans were challenged by Hawaii and other Democratic-led states, the American Civil Liberties Union and refugee groups.
Both provisions were blocked by lower courts but were partially revived by the Supreme Court in June, which said the bans could be applied only to people without a “bona fide” relationship to people or entities in the United States.
That prompted new litigation brought by Hawaii over the meaning of that phrase, including whether written assurances by resettlement agencies obligating them to provide services for specific refugees would count as a bona fide relationship.
The Trump administration said the assurances should not, meaning such refugees would be barred.
The appeals court also said his administration did not persuasively explain why the broader travel ban should be enforced against close relatives of people from the six specified countries. The Justice Department said in its filing on Monday it disagreed with that part of the decision but was not seeking to block it from going into effect.
The broader question of whether the travel ban discriminates against Muslims in violation of the U.S. Constitution, as lower courts previously ruled, will be considered by the Supreme Court in October.
States, civil liberties advocates and others who challenged Trump’s order in court argued that it violated federal immigration law and the Constitution’s First Amendment prohibition on the government favoring or disfavoring any particular religion. Critics called it a discriminatory “Muslim ban.”
Trump’s March order replaced a broader January one that was blocked by federal courts.