Trump apologists are apoplectic that a federal judge in Hawaii (or what Republicans call “some island in the Pacific”) is at it again. The Judge, Derrick Watson, issued an injunction on March 29, 2017 that halted implementation of Trump’s self-styled “travel ban” – an executive order that purported to stop travel to the United States from six predominantly Muslim countries.
The Supreme Court later lifted part of that injunction, allowing the Trump Administration to implement the executive order as to nationals from those countries who have no ties to the United States (in other words, people who were not injured by the ban because they had no pressing reason to travel to the United States anyway), but keeping the injunction in place as to people with “bona fide” ties to the US – meaning that Trump’s ban could not be enforced against people with legitimate ties to the US. (See my take on all this at Salon.com here.)
The Supreme Court, in requiring that people with bona fide ties to the US be allowed to travel to the US, said that this group of people includes, among others, anyone who enjoys a “close familial relationship” with a person in the United States.
In implementing the Supreme Court’s order, Trump’s team, led by Lilliputian Lawman Jefferson Beauregard Sessions The Third, set about to give “close familial relationship” as absurdly narrow a construction as possible:
The [Trump Administration’s] guidance defines “close familial relationship” as including a parent, parent-in-law, spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling (whether whole or half), and step relationships. These relationships are exempt from [Trump’s executive order]. The Government’s definition does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law.
It was utterly predictable that Team Trump would do this, what with its disdain for both the judiciary and human beings who fall outside the average American rube’s conception of whatever it is that constitutes “Real America.” But as Judge Watson noted, the Trump-Sessions not-your-grandma paradigm falls well outside the Supreme Court’s conception of what it is that constitutes a family.
This past Thursday, Judge Watson slapped down the Trump Administration yet again, issuing a new nationwide injunction barring the aministration from categorically excluding “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.” The question now is whether Judge Watson’s new ruling will be upheld by higher courts.
Has the Supreme Court ever addressed what counts as a close family relationship?
Why yes. Yes it has.
First of all, Animal House doesn’t count. In Village of Belle Terre v Boraas, 416 US 1 (1974), the Court upheld a zoning law that stopped unrelated persons from cohabitating in the same house. The court reasoned that there was no national tradition of honoring such practices, noting that, as to cohabitation, our national tradition holds up and prefers the family unit, not any other (potentially wicked) arrangement.
But later, in Moore v City of East Cleveland, 431 U.S. 494 (1977), the Court found a living arrangement that it liked much better. At issue in Moore was a city zoning (cohabitation) ordinance that defined family relationships in such a way as to prevent a grandmother from living in her own house with two of her grandchildren because they were cousins, not siblings, to one another. As Judge Watson noted, the Supreme Court struck down the ordinance, stating that the “tradition of uncles, aunts, cousins, and especially grandparents sharing a household with parents and children has roots . . . deserving of constitutional recognition.”
In Moore, the Court went beyond paying lip service to the multi-generational and multi-layered family living arrangement, announcing a fundamental constitutional right of the individual to make deeply personal decisions — unobstructed by governmental intrusion — about which family members to include in the family unit and family home. (To repeat, this right is limited to family members, not mere strangers, acquaintances, or friends.)
Furthermore, in an opinion authored by none other than Justice Antonin Scalia (Neil Gorsuch’s predecessor and ideological hero), the Supreme Court ruled that the constitutionally protected family unit (or what the Court called the “unitary family”) is not based on biological relationships, but time-honored traditions. In Michael H v Gerald D, 491 US 110 (1989), the biological father of a child wanted visitation rights with the child even though the child’s mother, with whom he’d had an adulterous affair, remained married to her husband, who was willing to raise the child as his own despite the circumstances leading to the child’s birth. In rejecting the biological father’s claim, the Court reaffirmed the fundamental right of the individual to protect and nourish the family unit and to decide which others to include in or exclude from that unit. The Court also expressly rejected any formalist approach to defining that unit, even based on biological parentage.
These and other cases cut against the Trump Administration’s attempt to slice and dice the family unit into bite-sized morsels that would barely choke a sandhill crane. Whereas the Supreme Court has rejected narrow reliance on biological relationships or degrees of consanguinity, the Trump Administration has embraced those parameters in fashioning its exclusionary policies.
How is a Court that has already lauded the role that “uncles, aunts, cousins, and especially grandparents” play in forming and participating in the family unit now to hold that those very same people may be categorically excluded from entering the United States because their relationships, even though fundamental enough to the human experience to be constitutionally protected, can never be “close” enough to satisfy Donald Trump, the serial adulterer?
It is significant that in its opinion requiring the admission of anyone with a “close familial relationship” with a person in the US, the Supreme Court noted that what it meant by that was the kind of relative who would “wish to enter the United States to live with or visit a family member.” In its family-rights cases, the Court has expressly stated that when it comes to living arrangements (i.e. arrangements involving those who “wish to . . . live with or visit” family members), relatives like uncles, aunts, cousins, and grandparents may not be excluded based on the arbitrary and subjective preferences of some governmental decision-maker.
Higher courts, including the Supreme Court, could — and certainly should — take issue with a definition of “close familial relationship” that is at odds with our constitutional notions of historically honored practices and relationships. But it’s worth remembering that three justices, including Gorsuch, thought nothing of the Trump Administration banning all would-be travelers from the six affected nations, let alone mere relatives. As we now inhabit a country that prides itself on the dehumanization of “The Other,” don’t be surprised if our highest Court eschews the rights of families that are not, in the Court’s view, sufficiently “American.”