Why Should The Government Get To Determine What Constitutes A “Bona Fide Relationship”?
When the Supreme Court this week issued its ruling on the so-called revised Trump “travel ban,” it promulgated a new standard by which various government agencies would be required to devise criteria for who to allow in the US. If a foreign person resides in one of the six affected countries — Iran, Sudan, Yemen, Syria, Somalia, Libya — then they are only to be permitted entry, per the Court’s dictate, if they can demonstrate having a “bona fide relationship” with a US person or entity. Clearly, there is huge ambiguity associated with that phrase. As Justice Clarence Thomas rightly complained, the resulting uncertainty will ensure that this summer sees a deluge of litigation pertaining to who exactly qualifies for entry.
Thomas wrote,
The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a “bona fide relationship,” who precisely has a “credible claim” to that relationship, and whether the claimed relationship was formed “simply to avoid” [the executive order].
His qualm seems well-founded. Until the Court resolves the case on the merits, lower courts, individuals, organizations, etc. will be forced to subjectively interpret what a “bona fide relationship” consists of.
Practical considerations aside, the Court’s use of this particular phrase has some portentous implications. Implicitly, it asserts a role for the state in adjudicating which relationships are “bona fide” and which relationships are not — a task which necessarily entails some degree of intrusion into the private and even intimate affairs of citizens. It also highlights how fundamentally arbitrary the enforcement of the standard will inevitably be. For instance, on June 29 — the day the revised ban went into effect — the State Department issued a guidance outlining whom it regards as having a “bona fide relationship.” In it, the Court decrees that close familial bonds qualify: such as between siblings, parents/children, and spouses.
According to the U.S. Government, a parent/child relationship ought to be considered intrinsically “bona fide,” while other types of bonds are to be considered less than “bona fide.” It’s not difficult to come up with examples which show this reasoning to be specious. A child and a parent might have been estranged for decades — not spoken, interacted, or had any relationship over the course of many years. And yet, per the State Department, this relationship will nonetheless be regarded as “bona fide.” On the other hand, two close friends, who’d known one another for decades, are in constant contact, and have a very intimate bond, would not qualify.
The State Department is deciding, arbitrarily, that familial bonds be given priority over other types of bonds, even though a familial bond may be of lesser practical significance than various kinds of platonic bonds. It goes to show that the state ought not to be in the business of opining on the nature and value of interpersonal bonds, as it opens the floodgates for various fraught questions of this kind.
Another aspect of the guidance that’s received particular scrutiny is the State Department’s exclusion of grandparents:
A close familial relationship is defined as a parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half, and including step relationships. “Close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, and any other “extended” family members.
One obvious fallacy of this reasoning is that a person could have a much closer, more “bona fide” relationship with a grandparent than with a parent. If the aim of this directive is to ensure that the bond between a US person and a foreign person is sufficiently close to justify admittance to the US, then excluding grandparents makes no sense, as a child-grandparent relationship could in many cases constitute a far closer bond than a child-parent relationship.
Interestingly, the “bona fide relationship” standard has been invoked by the U.S. federal government before. One example was with regard to the draft. On February 15, 1956, President Dwight Eisenhower issued an executive order amending certain Selective Service regulations. In it, Eisenhower outlined which classes of young men would be eligible for draft exemptions:
(4) Nonvolunteers who have attained the age of 19 years and have not attained the age of 26 years and who have a child or children with whom they maintain a bona fide family relationship in their homes, in the order of their dates of birth with the oldest being selected first.
This meant that men aged 19–25 who could demonstrate a “bona fide family relationship in their homes” would be granted priority for draft exemptions. Necessarily, this entailed that local draft boards would get involved in adjudicating whether a particular family relationship was sufficiently “bona fide” to warrant the granting of an exemption. Given that family relationships can be extremely complicated and nuanced, the fact of the state taking a direct role in adjudicating such matters necessitated an intrusion into the private, intimate affairs of citizens. The ambiguity of the “bona fide relationship” standard, then, meant that government actors would be tasked with opining subjectively on the validity of certain interpersonal relationships.
60+ years later, the circumstances around the “travel ban” obviously differ, but the fundamental principle remains fairly constant: government entities will have to get involved in adjudicating the private lives of persons to determine who is owed certain state-granted “privileges.” In 1956, the “privilege” was exemption from conscription. In 2017, it’s admission to the country. For reasons that should be obvious, the state taking on such a role should make anyone queasy.
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When the “ban” officially went into effect last night, there was a relatively orderly bureaucratic process in place — at least at LAX, where I observed the proceedings — such that the chaos of the original ban, from January, was not replicated. This can be seen as a double-edged sword. On the one hand, it’s good that individuals who did nothing wrong were not unduly disrupted or penalized. But on the other hand, the disarray wrought by the initial ban galvanized large-scale public attention and protest, significantly amped up pressure on the administration, and contributed to a “bona fide” policy shift. The smooth implementation of the current ban could well mean that the reaction this time around is much less vociferous — even though the underlying arbitrariness of the policy very much remains.
