Serve and volleyHawaii and the White House exchange angry briefs on the travel ban

IN JUNE, the number of students who sat for the Law School Admissions Test (LSAT) was up 20% over the same sitting in 2016—a bump the exam’s administrator chalks up, in part, to “our current political climate” spurring “people...to understand again the necessity for the rule of law”. Lawyers have indeed been busy and prominent in the Donald Trump era—and the past few days have been no exception. Late on July 14th, in the wake of a July 13th rebuke from a federal district court in Hawaii, Mr Trump’s Department of Justice (DoJ) asked the Supreme Court to clarify its June 26th ruling permitting the president’s pause on refugee admissions and on travel from six majority-Muslim countries to go into effect only for “foreign nationals who lack any bona fide relationship with a person or entity in the United States”. On July 18th just before noon, Hawaii responded to this plea with a sharply worded, 38-page brief. Then, about nine hours later, the DoJ replied to Hawaii’s response with a 15-page rejoinder. It’s a back-and-forth war worthy of a Wimbledon final.

The paper-and-ink volley over whether (contrary to the Trump administration’s reading) the likes of grandparents, cousins and nephews may constitute “bona fide” and “close familial” relations is not being fought in polite, lawyerly terms. The lawyer for Hawaii, Neal Katyal, trumpeted his brief on Twitter as “quite a read”. It is.

On the first page, Mr Katyal characterises the administration’s claim that the lower court “eviscerated” the Supreme Court’s order as “nonsense”. The district court, the brief reads, “faithfully applied” the justices’ opinion, “holding that ‘close relatives’ like grandparents and nieces are permitted to enter, and recognizing that the charities, non-profits, and churches that have made a formal, contractual commitment to shelter and clothe refugees would suffer ‘concrete hardship’ if those refugees are excluded”. But the district court’s interpretation of the Supreme Court ruling still let Mr Trump’s executive order take wide effect, Mr Katyal emphasised. It continues to apply “against more than 85% of refugees” and “countless extended family members—second cousins, great aunts, and so forth” as well as other people who “indisputably lack close relationships with American individuals and entities”.

Firing back, Jeffrey Wall, Mr Trump’s acting solicitor-general, wrote that Hawaii’s position is a ploy to “drain [the Supreme Court’s ruling] of meaning”. To ask the justices to sit on their hands pending “further litigation in the lower courts...makes no sense”, he wrote. The Supreme Court “is the only court that can provide definitive clarification of the meaning of its stay order”, since it wrote the order. Waiting for lower courts to finish their consideration of the question “would needlessly delay resolution of these issues and exacerbate the confusion and disruption already caused by the district court’s ruling”. Mr Wall found another contention that “makes no sense”: exempting approximately 24,000 refugees from the ban who already have formal assurances from resettlement agencies. These assurances do not amount to bona fide relationships with an American entity, he wrote. And as for family members? “There is no reason”, Mr Wall wrote, to assume that all relatives the district court sought to exempt from the travel ban have genuine relationships with people living in America. An example: “A US citizen whose foreign-national sister marries an alien abroad may have never met that brother-in-law”. So why should the brother-in-law be exempt from the travel restrictions?

Mr Katyal will not have a chance to reply to this final plea from the DOJ. But the justices will see the glaring flaw in Mr Wall’s reasoning easily enough. The Supreme Court said in its ruling last month that only people with a “credible claim” to a “bona fide relationship with a person or entity in the United States” should qualify for an exemption. A brother-in-law unknown to an American citizen will not be able to advance such a credible claim. But a brother-in-law who is intimately involved in the affairs of a person living in America will have a legitimate claim, as will many if not most uncles, aunts, nieces, grandmothers and grandfathers who are all out of luck under the Trump administration’s interpretation.

How will the Supreme Court handle this hermeneutic quandary? It would be a surprise if the justices gave their stamp of approval to the Trump administration’s opportunistically narrow view of who qualifies as close family. The administration's categorical reading of this concept is overly cramped: nothing in the justices’ opinion suggested they meant to be so stingy. On the refugee question, the judgment may be closer, but it seems Hawaii has the better chance of prevailing. Mr Trump’s lawyers have had a hard time elucidating just whom the Supreme Court meant to exclude from the refugee freeze, if not people escaping hardship abroad whose resettlement plans are already in the works through American agencies. These people clearly did not forge relationships with American organisations “for the purpose of evading” Mr Trump’s ban.

The justices will take a break from their summer break to consider Mr Trump’s plea for clarification. One way out would be to accept Hawaii’s argument that the White House motion is simply out of line with how the Supreme Court does business. The request for clarity, Mr Katyal wrote, “is truly extraordinary, and has no basis in this court’s settled procedures and practices”. But if the justices take this route—rebuffing the administration on procedural grounds—Mr Trump will continue to press his case at the Ninth Circuit Court of Appeals, where he is likely to lose. That means the government will soon come knocking on the Supreme Court’s door for a third time—turning this into a match that could extend into August.