//  6/12/17  //  Commentary

Today, the Court decided Sessions v. Morales-Santana, which is a case about who exactly is a citizen of the United States at birth. More specifically: If you are born abroad, and your parents are unmarried, and one of them is a citizen of the United States and one is not, are you a citizen? Until today, the law treated you differently depending on the sex of your citizen parent. If your father was a citizen, then (among other things) he had to be resident in the United States for five years before you were born for you to be a citizen; if it was your mother, it was a shorter period, just one year. The question presented in the case is whether this sex classification was constitutional. 

Because of the opinion assignments from November, it had been reasonably clear for some time that Justice Ginsburg had been assigned this opinion, and indeed on the merits she wrote for the Court an opinion that is perfectly consonant with what you might predict. No, said the Court, you cannot treat people differently depending on whether their citizen parent was a man or woman. Fair enough, and certainly seems right to me.

But! As Howard wrote about earlier today, the further question then arises: what do you do about this? Do you treat the children of citizen women worse, or the children of citizen men better? On First Mondays, back in November, co-blogger Dan Epps and I referred to these as "the nice remedy" and "the mean remedy." Surprisingly, at least to me, today the Court elected the "mean remedy": children born to citizen mothers will, henceforth (more on that in a second), be worse off. A child born abroad to a non-citizen father and a citizen mother will not be a citizen unless that mother satisfied the longer residence requirements. The upshot is that Morales-Santana loses, and will be removed from the United States, because his father was a few days short of the required residence requirements.

There is a lot to dislike about the remedy portion of this opinion, which I think is an early contender for the worst thing Justice Ginsburg has ever written for the Court. Let me just pick out a couple of things.

1. Statelessness. One of the government's major justifications for the difference in treatment was the avoidance of statelessness for children—that is, to avoid a situation where a child would not be a citizen of any country. The government argued without contradiction that there were many states that "put the child of the U. S.-citizen mother at risk of statelessness" because they did not provide "for the child to acquire the father’s citizenship at birth." Yes, says the Court: but there are also "formidable impediments placed by foreign laws on an unwed mother’s transmission of citizenship to her child."

In many countries, for example, a woman cannot "assign nationality to a nonmarital child born outside the subject country with a foreign father." In others, women who are citizens of such countries cannot even  "transmit their citizenship to nonmarital children born within the mother’s country." (Emphasis mine.) True—but the Court's remedy then makes this problem even worse by making it harder for children of U.S.-citizen mothers to be citizens. There is no evident appreciation in the Court's opinion for this fact. The practical consequence of the decision will absolutely be to worsen the problem of statelessness, something that is nowhere acknowledged in Justice Ginsburg's opinion.

2. Prospectivity. When the decision was handed down, I was immediately alarmed for the fate of the many, many people who have enjoyed citizenship at birth through their mothers, and whether their citizenship would be in jeopardy. What happens to the person whose mother was resident in the United States for 2 years when they were born (perhaps a long time ago), and who has lived their life as a citizen ever since? Deportation? This was an especial worry because the BIA recently decided Matter of Faldoun, in which the agency concluded that a person born outside the United States—even one who has been treated as a citizen—must always prove his citizenship in deportation proceedings, even if they have valid documentation of citizenship, and is vulnerable to later collateral challenges based on the facts or law.

The Court's opinion, however, addresses this worry in what is literally the last operative sentence of the opinion. Until Congress proscribes a different rule, the Court says, the "five-year requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers." (Emphasis mine.) Now, why would that be? Prospectively, that is? The usual rule is that a court opinion construing the meaning or validity of a civil statute is "retroactive," in the sense that the court is simply announcing what the law has always been; there are a variety of exceptions to this principle, some more sensible than others, and perhaps they ought to apply here. Yet the Court says not one word about why the remedy is to be prospective—I suspect because it is a pure kludge, a price exacted by members of the Court who could not live with the cruelty of retroactivity but not elaborated upon because other members of the majority did not want the point labored.

It is not as clean a solution as it seems. What does "prospectively" mean, for one thing? Does the Court mean the rule is to be applied to children who are born after today? To people who have not yet been adjudged citizens in some final-ish court or agency proceeding? What of a person who was born 25 years ago to a citizen mother who cannot satisfy the new rule, and who has held a passport his entire life, but who commits an offense in 2018 that would render an immigrant removable. Is his removal a "prospective" application of Morales-Santana? I can see arguments both ways, and there is absolutely nothing in the Court's opinion to help sort the matter out.

3. The Gentler World of Thomas and Alito. In concurrence, Justice Thomas writes (joined by Justice Alito) that he agrees the Court cannot afford the relief Morales-Santana wants, and so would decide nothing more than that—he would skip, in other words, the merits holding. In a strange way, this would leave many immigrants better off: because Justice Thomas does not want to reach the merits, and because it is hard to imagine who would have standing to challenge the (now-unlawful) grant of citizenship to a person on the basis of his mother's citizenship, there are a lot of people who will be deported from the United States in the years to come who would have remained if Justice Thomas had his way.

On the whole, the opinion left me (as might be clear) with a bad taste in my mouth. It is a symbolic victory, and perhaps a principled one, but an unmitigated material rout. There is not a single human being whose life will be made better because of this opinion, and many people whose lives will be worse. Its crucial operative portion is utterly unexplained and will spawn a great deal more litigation; it is, through and through, a disappointment.


Cross-posted with one minor variation at PrawfsBlawg.

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