//  6/29/17  //  Commentary

Surprise! The Trump administration took the Supreme Court’s carefully crafted compromise in the travel ban litigation and made a mess of it. On Monday, a majority of the Supreme Court opted to keep the injunctions against the entry ban and suspension of the refugee program in place, at least for “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” But it lifted the injunctions as to persons who did not, thus allowing the entry ban and suspension of the refugee program to be applied to “foreign nationals abroad who have no connection to the United States at all.”

The Court’s order thus raised the question: Who has a “credible claim of a bona fide relationship with a person or entity in the United States” and who does not? When the Supreme Court announced its decision, I was cautiously optimistic. Like Daniel Hemel and Marty Lederman (and other commentators as well), I thought the Court’s compromise made sense from an institutionalist perspective, even though the Court did little to explain or justify either its decision to retain the injunctions, or its decision to modify them. But at the time, I also expressed concern about how the Court’s standard—a “credible claim of a bona fide relationship”—would be interpreted. The Court made some efforts to define what kinds of persons have a bona fide relationship with a person or entity in the United States, but the category was still susceptible to interpretation around the edges.

Then the administration brought in a buzzsaw. Some time on Wednesday, the State Department issued a cable with its determination about the scope of the remaining injunctions. The cable declares that a "credible claim of a bona fide relationship with a ‘person’ must be a close familial relationship.” That much seems fair, or at least arguably defensible. But then the kicker:

Close family” is defined as a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half.  This includes step relationships.  “Close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-laws and sisters-in-law, fiancés, and any other “extended” family members.

When I wrote on Monday, my concern was with the case-by-case discretion that I expected would be exercised in the course of implementing the Court’s injunction. I did not expect the administration to issue a guidance that embodies an extremely rigid and stingy interpretation of the Court’s injunction. Whatever grey areas there are, and whatever discretion there is in determining who has a “credible claim of bona fide relationship with a person or entity in the United States,” that category does not lend itself to the brightline rules the administration has imposed on it.

Amir Ali has already flagged how the administration’s interpretation of “bona fide relationship with a person in the United States” is not a good faith interpretation of the Supreme Court’s order. In Monday’s order, the Court limited the injunctions so that the ban and suspension could be applied to “foreign nationals abroad who have no connection to the United States at all” and “a foreign national who lacks any connection to this country.”  Those phrases hardly describe someone’s grandparent or grandchild, or a fiancé or brother-in-law. And while the Court’s order gave examples of what would count as close familial relationships (including a mother-in-law), there is no indication those examples were meant to be exclusive. And the Court’s statement that a mother-in-law would “clearlycount as a close familial connection hardly implies that fiancés and grandparents do not.

To that, I’d add three things.

First, there are several indications in the law that relationships the administration has declared not to be close familial relationships are sufficiently close—or, more accurately can be sufficiently close such that they are “bona fide” and perhaps even legally protected. The administration’s order creates rigid categories when family relationships are family specific; whether a particular grandparent or brother in law or fiancé has a close familial relationship depends on the relationship.

Here ae some potentially relevant cases that any lawyer who bothered to think for 5 seconds or research for 5 minutes would find:

In Moore v. City of East Cleveland, the Supreme Court invalidated an ordinance that limited people to living with their husband or wife, unmarried children, and at most one unmarried or dependent child’s children.   The plaintiffs in the case were a family that lived in a home together with a grandmother, her son, and her two grandsons. One of the grandsons was the son of a child other than the son living in the home. The Supreme Court held the statute infringed the family’s liberty interest in being together. And in the course of deciding the case, the Court rejected the city’s argumentthat none of [the Courts prior cases] ‘gives grandmothers any fundamental rights with respect to grandsons,’” and “that any constitutional right to live together as a family extends only to the nuclear family essentially a couple and their dependent children.”

Here is what the Court had to say about the kinds of family relationships that may give rise to liberty interests under the Due Process Clause:

Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition.

There is also Troxel v. Granville, in which the Supreme Court held that the Washington state visitation statute unconstitutionally infringed parents’ familial rights over their children. In that case, the paternal grandparents had petitioned for visitation with their grandchildren who were born out of wedlock. Here’s how the Supreme Court generally described family relationships:

Understandably, in these single-parent households, persons outside the nuclear family are called upon with increasing frequency to assist in the everyday tasks of child rearing. In many cases, grandparents play an important role …

Yes, Troxel held that the parents’ rights were more compelling than the grandparents. But the language from Troxel certainly doesn’t sound like grandparents are categorically precluded from forming close familial relationships or “bona fide” relationships with their grandchildren.

There’s more of course. In Johnson v. City of Cincinnati, the Sixth Circuit explained that “nothing in our tradition or precedent can credibly be read to suggest that the right to participate in child rearing does not extend to grandparents.” In Estate of BIC v. Gillen, the Tenth Circuit explained that the right to familial relationships can extend to grandparents and grandchildren depending on their relationship. (It also cited two prior Tenth Circuit cases saying the same—Suasnavas v. Stover and Trujillo v. Board of County Commissioners of Santa Fe County; Suasnavas held that prior cases had clearly established, for purposes of qualified immunity, that grandparent-grandchild relationships could be constitutionally protected.) As these (and other) cases recognize, there is no “automatic” constitutionally protected liberty interest that arises because of the genetic connection between a grandparent and a grandchild. Rather, the point is that grandparents and grandchildren can and do sometimes form “bona fide” relationships. There is no basis for saying categorically that they cannot.

Second is the gratuitous cruelty of the administration’s order. The administration is applying this definition of “close family relationships”/”bona fide connections” to the suspension of the refugee program. That is, it has declared that admission into the refugee program is suspended for those persons who do not have a “close familial relationship.” I don’t think it is outlandish to think that perhaps those persons who are refugees may have had their familial relationships disrupted. What if a child’s mother or father passed away, or is unable to escape? Now that child cannot rely on a grandparent in the United States. What if a spouse passed away, or is unable to escape? Now the surviving spouse cannot rely on a brother-in-law or sister-in-law in the United States. In Moore, the Supreme Court observed that “Especially in times of adversity, such as the death of a spouse or economic need, the broader family has tended to come together for mutual sustenance and to maintain or rebuild a secure home life.” It would be nice if the administration signaled any awareness that perhaps life may be a little complicated and not subject to neat and tidy categories for refugees. Instead, they have made a policy that is almost as arbitrary as it is cruel.

Third is the three-Justice dissent from the Supreme Court’s decision to allow the injunctions against the entry ban and refugee suspension to remain in place. When the Supreme Court decided to allow the injunctions against the executive order to remain in place for persons with a “bona fide relationship” with persons or entities in the United States, three Justices dissented—Justice Thomas, Justice Alito, and Justice Gorsuch. Those Justices would have lifted the injunctions entirely and allowed the administration to enforce the entry ban and suspension of the refugee program. Richard Primus wrote that the six Justices in the majority, who allowed the injunctions to remain in place, forewent saying anything on the merits “in the name of turning down the heat.” The three in the dissent, however, “declined to do so, even though nothing practical was at stake. It’s as if Chief Justice Roberts asked ‘Can’t we all get along,’ and Justice Thomas said ‘Actually, no.’”

With the wrap up of the Supreme Court’s most recent term, several commentators have opined on the kinds of signals or messages the Justices (particularly the newest Justice) have sent us. Writing of Justice Gorsuch’s decision to sign onto Justice Thomas’s dissent from the travel ban order, Richard wrote: “Justice Gorsuch signaled that the new guy is perfectly willing to make trouble as the chief tries to keep the peace.” Noah Feldman described Justice Gorsuch’s dissent in Pavan v. Smith, the case about birth certificates for same-sex couples, similarly, i.e., as an indication that the newest Justice was inclined to “stir up trouble.” On Pavan, Noah wrote:

What this means for conservatives is that Gorsuch -- with two more votes on his side -- wants more states to refuse to apply Obergefell [v. Hodges, the decision invalidating bans on same-sex couples marrying] according to its simple logic. Instead, Gorsuch is inviting state courts, some of them elected in states where gay marriage remains unpopular, to put up barriers to marriage equality.

Does the administration feel emboldened in the travel ban litigation because they know that they have three Justices firmly in their corner, and that the three Justices happen to be ones that are willing to stir up trouble and dilute the message the Court may have been attempting to deliver to the administration? Who knows.

The six Justices on the Supreme Court attempted to speak softly when they said “let’s all play nice here.” But then the State Department smiled, turned around, and punched the other kids on the playground (who also happen to be refugees).

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On this week’s Versus Trump, Jason and Charlie discuss the Supreme Court's pair of decisions governing Trump's tax returns. Are they coming soon? Did the Democrats make a mistake in not being more aggressive in invoking the impeachment power? Listen now!

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Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

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