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Arrivals from the Middle East wait with their luggage for transportation at the International Arrivals section at Los Angeles International Airport on June 29, 2017, where free legal advice was offerec and activists protested President Donald Trump's ban temporarily barring entry into the US from Libya, Iran, Somalia, Sudan, Syria and Yemen. The ban prevents the issuance of visas to travelers from the six countries for 90 days and places the refugee-entry program on hold for 120 days. / AFP / FREDERIC J. BROWN Image Credit: AFP

President Donald Trump’s administration has issued guidelines through the State Department for who will be exempt from the travel ban from six majority Muslim countries, which the US Supreme Court allowed to partly go into effect. The guidelines are highly arbitrary in defining what counts as a family relationship that merits exemption. For example, your mother-in-law, to whom you are related only by marriage, is close enough to come into the US but not your grandmother, a blood relative without whom you wouldn’t exist.

It is partly as a result of the Supreme Court’s decision, which created a brand new legal category of “bona fide relationship” while defining it only in connection with the plaintiffs in the case. The result will be practical difficulties as well as more litigation in the months before the justices directly address the legality of the ban.

When the justices ruled on the ban, they sought to craft a compromise that would preserve the temporary restrictions on the ban put in place by the lower courts while simultaneously allowing Trump to declare victory, as he in fact did. The centrepiece of the compromise was that the travel ban would not apply to foreign nationals seeking admission to the US who have a “bona fide relationship with a person or entity in the United States.”

The court made up this category out of whole cloth. That’s allowed because the court has wide latitude to craft remedies when it is deciding on what will happen while litigation is pending. It’s exercising what is called “equitable discretion,” a legal phrase with roots in an old English legal distinction between strict law and flexible equity. When courts do equity rather than law, they don’t have to follow rules laid down in precedent or statute. They can weigh competing considerations and make up a rule to fit the specific case.

Upside and downside

The upside of equity is that it’s flexible. The downside is that when courts make up new rules, those rules have to be applied by government officials who lack detailed guidance.

The justices told the Trump administration that there were two kinds of “bona fide relationships” that it must consider. The first was what the court called “close familial relationships,” which is said were “required.”

The court didn’t say much more than that about what counts as close. The administration excluded grandparents and grandchildren, uncles and aunts, nieces and nephews, as well as unmarried partners, even when they are engaged.

It’s truly arbitrary to say your grandmother is not as a close a relative as your mother-in-law. Ditto your uncle. It’s not that Trump likes his in-laws more than his grandparents. This arbitrariness is a direct product of the court’s order. The Trump administration is trying to be as exclusionary as possible without violating the letter of the Supreme Court’s opinion. Expect litigation over the grandmother issue — starting as soon as today.

The Supreme Court may never rule on the arbitrariness issue. Its “close familial relationships” rule is supposed to remain in place only until the court addresses the merits of the travel ban in the fall. It may prefer to let the lower courts sort it out.

In the meantime, the anti-grandmothers rule stands as a testament to a grudging attitude toward immigrants — and the limits of the court’s equitable approach to compromise in this case.

— Washington Post

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to US Supreme Court Justice David Souter. His seven books include The Three Lives of James Madison: Genius, Partisan, President and Cool War: The Future of Global Competition.