On Monday, the U.S. Supreme Court invalidated a federal statutory provision that made it easier for unwed U.S.-citizen mothers to transmit their citizenship to children born abroad than for unwed U.S.-citizen fathers to do so. The ruling in Sessions v. Morales-Santana, at one level, a straightforward application of the principle that the Constitution presumptively bars official sex discrimination. Yet the case also has potentially important implications for other immigration issues, including the litigation over President Trump’s executive order banning the entry of nationals from six majority-Muslim countries.
Favorable Treatment for Children of Unwed U.S.-Citizen Mothers
The Constitution confers citizenship on persons born in the United States, but federal statutes have long provided that children born to U.S.-citizen parents outside of the United States also acquire citizenship at birth, subject to certain limits. One such limit requires that an unwed U.S.-citizen parent must have resided in the U.S. for a period of years prior to the child’s birth in order for the child to inherit his citizenship, but an exception allows for a substantially shorter period of U.S. residence prior to the child’s birth where the unwed U.S.-citizen parent is the child’s mother rather than the child’s father.
Luis Ramón Morales-Santana was born in 1962 in the Dominican Republic, the child of a Dominican mother and a U.S.-citizen father. Had his mother been a U.S. citizen and his father an alien rather than vice-versa, Morales-Santana would have acquired citizenship at birth. However, because his father failed to satisfy the relevant statutory residency requirements, Morales-Santana was deemed an alien and thus subject to deportation based on his 1995 convictions for serious offenses, including burglary, robbery, and attempted murder. He argued that he could not be deported because the law that deems him an alien amounts to unconstitutional sex discrimination.
The Supreme Court agreed with Morales-Santana that the distinction based on sex is unconstitutional. In an opinion for herself and five colleagues, Justice Ruth Bader Ginsburg condemned the distinction as violating the constitutional principle forbidding the government from legislating based on “overbroad generalizations about the different talents, capacities, or preferences of males and females.” Tracing the history of the provision, Justice Ginsburg explained that it rested on the sex-stereotyped assumption that children born to unwed parents will have closer ties to their mothers than to their fathers.
Accordingly, the Court required that the government come forward with an “exceedingly persuasive justification” for the different treatment. The government argued that the distinction was an effort to address the problem of stateless children, but the justices were unconvinced, as the statutory scheme was poorly designed to address statelessness and was not in fact designed for that purpose.
When a court finds that a law violates equal protection by treating two similarly situated groups dissimilarly, the legislature can address the problem going forward in one of two ways: it can level up—that is, it can give the previously disadvantaged group the benefit of the treatment previously reserved for the advantaged group—or it can level down—that is, it can deny to both groups the benefit previously reserved for the advantaged group. But what happens to the litigants before the court in the interim, before Congress has had a chance to fix the law?
Justice Ginsburg explained in Morales-Santana that ordinarily the Court will level up, vindicating the party who successfully challenges a law that works to his or her disadvantage. However, that approach is only meant to approximate what we might call Congress’s “fallback” intent. Here the justices thought it likely that the fallback intent was leveling down, because the statute was written with a long residency requirement as the basic rule, allowing a U.S.-citizen-parent “exception” of a short residency period where the mother is the U.S. citizen. Accordingly, Morales-Santana was ultimately denied relief.
Justice Thomas, joined by Justice Alito, concurred only with respect to the remedy. He wrote that the fact that Morales-Santana was unentitled to citizenship as a remedy obviated any need to adjudicate the merits of his constitutional challenge in the first place. Indeed, citing earlier separate opinions by the late Justice Scalia and himself, Justice Thomas expressed doubt that the Court has the power to confer citizenship even if that would conform to the imputed fallback intent of Congress.
Implications for the Travel Ban Litigation
The Thomas/Alito separate opinion in Morales-Santana may provide a clue to how the other justices will resolve the challenges to President Trump’s travel ban order, if and when one or more of the cases reaches the Supreme Court. By considering the possibility of leveling up, and treating the choice between leveling up and leveling down solely as a question of congressional intent, the majority implied that in a proper case they would confer citizenship beyond the particulars of an otherwise unconstitutional challenge.
That point is not directly in play in the travel ban litigation, of course, because the ban does not apply to U.S. citizens. But it does suggest that at least six justices think that the political branches do not receive blanket deference in immigration cases, in the way that the Trump administration has argued it should in the lower courts. (There were six justices in the majority and two concurring separately in Morales-Santana; Justice Gorsuch joined the Court too late to participate in the consideration of the case.)
However, the travel-ban-related tea leaves in Morales-Santana are not so easily read. In another respect, they appear to spell trouble for the ban challengers.
In order to find the sex-based line at issue unconstitutional, the Court had to distinguish a number of prior decisions upholding sex-based lines in the immigration context. One such decision was the 1977 ruling in Fiallo v. Bell, which gave preferential immigration treatment to children of mothers over fathers. In Morales-Santana Justice Ginsburg said that Fiallo was explained by the fact that there the Court was not applying the heightened scrutiny that applies in domestic sex discrimination cases but a very watered down scrutiny in light of “Congress’ ‘exceptionally broad power’ to admit or exclude aliens.” If Morales-Santana is read to reaffirm that the usual tests of unconstitutionality do not apply when the government seeks to admit or exclude aliens, the Trump administration could use the case as a useful precedent in the travel ban litigation.
Yet one should be cautious about reading the Morales-Santana Court’s treatment of Fiallo that way. For one thing, even the deference the Court described was deference to Congress, not the president. Just a few hours after the Supreme Court released its opinion in Morales-Santana, a panel of the U.S. Court of Appeals for the Ninth Circuit released an opinion mostly affirming a federal district court order enjoining President Trump’s travel ban on the ground that the executive order went beyond the authority Congress delegated to the president.
Moreover, in describing why the Fiallo Court thought that low-level scrutiny applied with respect to laws governing admission or exclusion of aliens, Justice Ginsburg’s opinion in Morales-Santana was careful not to endorse the Fiallo Court’s reasoning. She seemed at pains to leave the Court room in a future case to distinguish Fiallo on other grounds—such as the government’s bad faith in promulgating the travel ban—or even to say that the Fiallo opinion was mistaken in applying a low level of scrutiny.
Finally, viewed in the broadest context, Morales-Santana surely counts as a hopeful sign for the plaintiffs challenging the Trump travel ban. Doctrinal technicalities aside, the Supreme Court rejected the argument that judges must defer to a decision of the political branches to engage in illicit discrimination, so long as the context is immigration. As the government lawyers who have been regularly losing in the lower courts in the travel ban litigation have been learning the hard way, “immigration” is no longer a magic word that locks the courthouse doors shut.