“Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore...” But not their grandparents. The quote is from “The New Colossus,” the sonnet by Emma Lazarus mounted with the Statue of Liberty in 1903.
The recent decision by the U.S. Supreme Court on the Trump Administration's travel ban went into effect Thursday and strikes at the heart of that message for many. There is confusion nationally, however, over what the decision actually means. This, in part, because of some premature celebration coming from the President's Twitter account.
What the Court has not done is rule on the ban as a whole. Rather, it has decided to hear the case later this year and, in the mean time, allow part of the ban affecting foreign nationals lacking a “bona fide relationship with any person or entity in the United States.”
What about those “huddled masses?” Unfortunately for them, they are merely an idea, like America is an idea. Part of what the Court does in deciding a case like this is determine not only what the Constitution says, but about whom it says it. There is well-established authority granted by the Constitution to the President in matters of foreign affairs, but that power is not plenary. Similarly, there are a number of protected classes of individuals in the Constitution, but that number is not limitless.
By limiting the current ban to foreign nationals lacking a “bona fide relationship,” the Court is establishing some limit on the reach of constitutional protection. Specifically, applicants must show a relationship with a parent, spouse, fiancé, child, adult daughter or son, daughter-in-law, son-in-law, or sibling in the U.S. in order to enter the country. That leaves out “extended” family like grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, sisters-in-law, and brothers-in-law.
This is an interesting distinction because in other instances the Court has been unwilling to split families in such a way. In Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 503 (1977), the Court found the zoning of a neighborhood for single-family occupancy and defining “family” in a way that excluded grandparents from living with and caring for their grandchildren violated the Due Process Clause of the Fourteenth Amendment. While Moore did not involve the families of foreign nationals, the Court did show a need to extend protection beyond the “bona fide relationship” it recently defined with the travel ban.
The case will garner a lot of attention when the Court starts hearing oral arguments in the fall, but until then, the partial ban will have a real effect on the extended families of foreign nationals, moving the conversation from legal analysis to policy.
This all comes at the close of Immigrant Heritage Month in California, so proclaimed by Governor Brown at the beginning of June. The proclamation begins, “California is a land of immigrants within a nation of immigrants.” That remains true despite the partial ban on travel, just not all immigrants.