In a footnote, Katyal contends certiorari before judgment is an extremely rare occurrence and the government s request is also at odds with the traditional position of the Solicitor General s Office.

Making his argument, Katyal pointed to a Supreme Court case with which he is intimately familiar, having argued and won it in that court before becoming acting solicitor general: the 2004 decision in Hamdan v. Rumsfeld.

In Hamdan, the solicitor general at the time Paul Clement, now a Kirkland & Ellis partner had argued that certiorari before judgment is inappropriate in three situations, Katyal said. All three of those considerations apply here, he wrote.

Katyal further said a writ of mandamus an order to the district court is unwarranted. The high court s precedents hold that for mandamus to fit, the district court s action must be more than just wrong. The writ is justified only in exceptional circumstances, amounting to a judicial usurpation of power, according to a 1980 Supreme Court decision.

The position of the Office of the Solicitor General here is inconsistent with the prior views of the office, Katyal wrote in a footnote. The district court s order is not obviously incorrect, which the government itself has previously viewed as a prerequisite to mandamus review.

On the merits, Wall argued the government s definition of close familial relationships is drawn from federal immigration law. The Hawaii judge s interpretation, he wrote in court papers, empties the [Supreme] Court s decision of meaning, as it encompasses not just close family members, but virtually all family members. Treating all of these relationships as close familial relationship[s] reads the term close out of the court s decision.

And a refugee assurance-agreement, Wall tells the court, does not itself create a relationship between a refugee and a resettlement agency, the government has not treated that fact alone as sufficient to trigger the injunctions. To do so (as the district court did) would render the refugee portion of this court s decision effectively meaningless.

Katyal countered that the relationship between a refugee and her resettlement agency is formal, documented and formed in the ordinary course. Just as this court intended, the stay will continue to apply to every foreign national that lacks a bona fide relationship with a person or entity in the United States, he wrote. That is no minor outcome: As the government itself acknowledges, some 175,000 refugees currently lack a formal assurance.

The Supreme Court s order last month letting parts of the ban take effect gave mother-in-law as a clear example of a close familial relationship, Katyal said, defending the district court s exclusion of grandparents, grandchildren, aunts, nieces, and cousins from the travel ban. If a mother-in-law is clearly within the scope of the injunction s protection, then these relatives must be as well.

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