In Sessions v. Morales-Santana,1×1. 137 S. Ct. 1678 (2017). the Supreme Court encountered a body of citizenship law that has long relied on family membership in the construction of the nation’s borders and the composition of the polity.2×2. See Kristin A. Collins, Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation, 123 Yale L.J. 2134 (2014). The particular statute at issue in the case regulates the transmission of citizenship from American parents to their foreign-born children at birth, a form of citizenship known today as derivative citizenship.3×3. Immigration and Nationality Act of 1952, ch. 477, §§ 301, 309, 66 Stat. 163, 235–36, 238–39. Derivative citizenship is the modern American term for what was traditionally called jus sanguinis citizenship — citizenship “by blood.” Because of the primary position of jus soli citizenship — citizenship by virtue of one’s place of birth — in the common law and constitutional conceptions of American citizenship, see U.S. Const. amend. XIV, § 1; United States v. Wong Kim Ark, 169 U.S. 649, 675–76 (1898), in American law jus sanguinis citizenship is limited to citizenship transmission from an American parent to his or her foreign-born child. When those children are born outside marriage, the derivative citizenship statute makes it more difficult for American fathers, as compared with American mothers, to transmit citizenship to their foreign-born children.4×4. For accuracy’s sake, one should refer to the derivative citizenship statutes, plural, as different statutes apply depending on the date of the foreign-born child’s birth. See infra note 12. Over the last twenty years, the Supreme Court has considered four gender equal protection challenges to that law.5×5. See Morales-Santana, 137 S. Ct. at 1686; Flores-Villar v. United States, 564 U.S. 210 (2011) (mem.) (per curiam), aff’g by an equally divided Court, 536 F.3d 990 (9th Cir. 2008); Nguyen v. INS, 533 U.S. 53, 56–57 (2001); Miller v. Albright, 523 U.S. 420, 424–26 (1998) (Stevens, J.). As in previous cases, Luis Morales-Santana’s constitutional challenge required the Justices to grapple with two crucial and contested issues: the extent to which constitutional gender equality principles govern regulation and recognition of family relationships, and the nature of the judiciary’s role in the enforcement of the Constitution at the border. But in Morales-Santana, the Court did something it had never done before: in an opinion that develops a progressive vision of gender equality for the nonmarital family, it declared that a law governing the acquisition of citizenship violates equal protection principles.6×6. Morales-Santana, 137 S. Ct. at 1697–98.
Morales-Santana may be an empty victory for the individual who came to the Court seeking justice and recognition, however, as the Justices made the unprecedented decision to remedy the equal protection violation by “leveling down”: that is, rather than giving unmarried fathers and their children the benefit of the more generous standard in the citizenship statute, the Court nullified that standard for unmarried American mothers and their children.7×7. Id. at 1700–01. The remedy ordered by the Court is not entirely clear, but it could very well leave Morales-Santana with no practical relief. In addition, it almost certainly makes some unmarried American mothers and their foreign-born children worse off.8×8. See infra pp. 209–13. How did Morales-Santana end up with a right but, quite possibly, no effective remedy?9×9. The constitutional right that Luis Morales-Santana asserted, and that the Court recognized, was that of his citizen father to equal protection of the laws. Morales-Santana, 137 S. Ct. at 1688.
This Comment offers an answer to that question — one that accounts for Morales-Santana’s clear and forceful repudiation of a body of gender-based citizenship laws that have long shaped the composition of the American polity, its articulation of constitutional equality norms that have the potential to significantly shape how government officials regulate the family, and its unprecedented invalidation of a statute regulating acquisition of citizenship. The remedial choice made by the Court in Morales-Santana may be unusual, but this is by no means the first time that the Court has moderated its use of remedial authority while exercising — and entrenching — its power to say what the law is in a highly contentious regulatory domain.
The citizenship statute at issue in Morales-Santana is complex and messy. It contains multiple sections that differentiate between unmarried mothers and unmarried fathers. The particular section at issue in Morales-Santana governs the period of time that an American parent must have been present in the United States in order to transmit citizenship to his or her foreign-born child at birth. All American parents must satisfy a U.S. presence requirement of some sort, but the duration differs significantly based on sundry factors.10×10. Under all currently operative versions of the statute, a foreign-born child of two American parents is a citizen at birth as long as one of the parents “has had a residence in the United States or one of its outlying possessions prior to the [child’s] birth.” 8 U.S.C. § 1401(c) (2012); Immigration and Nationality Act of 1952, ch. 477, § 301(a)(3), 66 Stat. 163, 235. For a child born before 1986 to a married mixed-nationality couple, the American parent must have been present in the United States for ten years, at least five of which were after the parent turned fourteen. Immigration and Nationality Act of 1952 § 301(a)(7). In 1986, that requirement was reduced to five years, two of them after the American parent turned fourteen. Immigration and Nationality Act Amendments of 1986, Pub. L. No. 99-653, § 12, 100 Stat. 3655, 3657. The foreign-born nonmarital child of an American father must satisfy a host of requirements, which differ depending on when the child was born. 8 U.S.C. §§ 1401(g), 1409(a); Immigration and Nationality Act of 1952 §§ 301(a)(7), 309(a). By contrast, the foreign-born child of an unmarried American mother is a citizen at birth as long as the child’s mother was present in the United States for a year any time prior to the child’s birth. 8 U.S.C. § 1409(c); Immigration and Nationality Act of 1952 § 309(c). Finally, and to complicate matters even further, the Child Citizenship Act of 2000, Pub. L. No. 106-395, 114 Stat. 1631 (codified as amended in scattered sections of 8 U.S.C.), provides automatic citizenship for a foreign-born child with at least one American parent if the child is under the age of eighteen and resides in the United States in the legal and physical custody of the citizen parent. Id. sec. 101(a), § 320(a). For an American father in a mixed-nationality couple — the situation in Morales-Santana’s case — the statute requires that the father have been present in the United States for ten years prior to the child’s birth, five of which must have been after the father turned fourteen.11×11. Immigration and Nationality Act of 1952 §§ 301(a)(7), 309(a). An unmarried American mother in this situation need only have been present in the United States for one year at any point prior to the birth of her foreign-born child for that child to be a citizen at birth.12×12. Id. § 309(c).
These little-known provisions that differentiate between American mothers and fathers in the regulation of parent-child citizenship transmission are obscure and ungainly. But they are also deeply rooted in a complex body of laws and policies that have used family membership to delineate the nation’s borders and constitute the nation’s citizenry since the late eighteenth century.13×13. Professor Rogers Brubaker’s classic study of citizenship drew important attention to the fact that the nation is defined by its membership as much as by its territorial boundaries, and that membership rules governing citizenship deserve scholars’ attention. See Rogers Brubaker, Citizenship and Nationhood in France and Germany, at xi (1992). For provocative discussions of the role of law in constructing national borders, see Mary L. Dudziak & Leti Volpp, Introduction to Legal Borderlands: Law and the Construction of American Borders 1 (Mary L. Dudziak & Leti Volpp eds., 2006); and Judith Resnik, Bordering by Law: The Migration of Law, Crimes, Sovereignty, and the Mail, in Immigration, Emigration, and Migration (Jack Knight ed., 2017). For important discussions of the role of the family in immigration and citizenship law, see Jacqueline Bhabha, Child Migration and Human Rights in a Global Age (2014); Martha Gardner, The Qualities of a Citizen: Women, Immigration, and Citizenship, 1870–1965 (2005); Linda K. Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (1998); Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (1997); Kerry Abrams, Polygamy, Prostitution, and the Federalization of Immigration Law, 105 Colum. L. Rev. 641 (2005); Kerry Abrams & R. Kent Piacenti, Immigration’s Family Values, 100 Va. L. Rev. 629 (2014); Nancy F. Cott, Marriage and Women’s Citizenship in the United States, 1830–1934, 103 Am. Hist. Rev. 1440 (1998); and Leti Volpp, Divesting Citizenship: On Asian American History and the Loss of Citizenship Through Marriage, 53 UCLA L. Rev. 405 (2005). As I show in Part I, well into the twentieth century, federal legislators and administrators relied on prevailing gender-based understandings of the parent-child relationship to determine a whole host of issues that arose in the implementation of those laws: which family members would be empowered to convey citizenship and immigration preferences, which families would be privileged, and which family relationships would be recognized.14×14. See infra notes 48–61 and accompanying text. The federal officials who crafted these gender-based membership and entry rules were also guided by ethno-racial conceptions of “Americanness” that coursed through American immigration and citizenship law more generally.15×15. See Collins, supra note 4, passim; see also Gardner, supra note 15, at 121–56; Abrams, supra note 15; Cott, supra note 15; Volpp, supra note 15. Professor Isabel Medina contends that this pattern holds true even today. M. Isabel Medina, Derivative Citizenship: What’s Marriage, Citizenship, Sex, Sexual Orientation, Race, and Class Got to Do with It?, 28 Geo. Immigr. L.J. 391, 403–16 (2014). Recognizing how these two vectors — gender-traditional conceptions of the parent-child relationship and racial nativism — have shaped American immigration and citizenship law is essential to understanding the development of the obscure parental presence requirement at issue in Morales-Santana.
One might assume that gender-based citizenship laws — like so many other laws that openly allocated rights, benefits, and opportunities along gender lines — would have been declared unconstitutional in the era of modern constitutional equality. But the gender-differentiated regulation of derivative citizenship has proved largely resistant to constitutional challenge,16×16. The very few cases in which gender-based challenges have been successful have been decided by lower federal courts. See infra note 118. though many such challenges have been brought since the 1970s. Morales-Santana changes this. In a majority opinion by Justice Ruth Bader Ginsburg that is notable for its clear account of the gender-based stereotypes concerning parental roles that have shaped the derivative citizenship statute in its every detail, the Court declared the parental presence requirement unconstitutional: The gender-based provision at issue “cannot withstand inspection under a Constitution that requires the Government to respect the equal dignity and stature of its male and female citizens.”17×17. Morales-Santana, 137 S. Ct. at 1698.
As I elaborate in Part II, Morales-Santana has the potential to alter the Constitution’s role in the regulation of the family and the border in multiple ways. First, the Court develops a modernizing understanding of gender equality as between nonmarital mothers and fathers, and as between marital and nonmarital families. The specific question in this case was whether Congress can restrict derivative citizenship along gender-discriminatory lines that limit recognition of the father-child relationship outside marriage — lines that, in the modern era, have been disfavored, though not wholly repudiated, in the Court’s equal protection jurisprudence.18×18. See infra p. 188. In Morales-Santana, without so much as blinking, the Court held that it would approach “all gender-based classifications” with the same judicial skepticism.19×19. Morales-Santana, 137 S. Ct. at 1689 (quoting J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994)).
Luis Morales-Santana’s constitutional challenge was the first case to have focused the Court’s attention on the status of nonmarital family relationships since the Court recognized same-sex marriage as a constitutional right. Drawing on the Court’s marriage equality jurisprudence — jurisprudence thought by many to reify the line between marital and nonmarital families20×20. See infra p. 200. — Morales-Santana repudiates a set of laws and practices that denigrated women as citizens and provides a vision of equality that could have substantial implications for nontraditional families and parents in same-sex and opposite-sex relationships.
Second, and as important, the opinion marks the first time that modern equality principles of any sort have served as grounds for the Court to invalidate a statute governing the acquisition of citizenship.21×21. See infra note 195. This is not trivial. In the many constitutional challenges to the derivative citizenship statute brought in the last forty years, government lawyers have contended that under what is called the plenary power doctrine, for all persons born outside the United States, the line drawn by Congress between citizen and noncitizen is generated pursuant to the sovereign authority of the United States and is therefore “largely immune from judicial control.”22×22. Brief for the Petitioner at 15, Morales-Santana, 137 S. Ct. 1678 (No. 15-1191) (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953)); see also infra notes 117, 200. Lower courts have generally agreed that Congress has enormous latitude to regulate derivative citizenship — even using gender-based distinctions.23×23. See infra notes 118, 151 and accompanying text. Outside the courts, this understanding of largely unfettered political branch authority has shaped the constitutional assumptions and working principles of federal officials who implement the derivative citizenship laws on a daily basis.24×24. See infra notes 119–20 and accompanying text.
By quietly rejecting the contention that federal judges should defer to Congress when it regulates parent-child citizenship transmission along constitutionally suspect lines, Morales-Santana constrains an operative understanding of the plenary power doctrine and calls into question a core principle that purportedly undergirds it: that sovereignty necessarily implies a limitation of judicial authority.25×25. See infra p. 205. Morales-Santana does not repudiate the plenary power doctrine, but it contains it and raises important questions concerning the doctrine’s future reach.
Judicial opinions assume meaning and significance over time,26×26. See Sanford Levinson & Jack M. Balkin, What Are the Facts of Marbury v. Madison?, 20 Const. Comment. 255, 280 (2003) (“Understanding what a case means often requires recognizing what happened after the decision was entered. . . . [T]he meaning of the case to later generations is produced by the later uses and interpretations of it, which continually reframe its meaning and significance in our eyes.”). however, and there is no way to predict how, or even whether, Morales-Santana will inform the development of constitutional equal protection law or the plenary power doctrine.27×27. Justice Neil Gorsuch was confirmed several months after Morales-Santana was argued. He did not participate in the resolution of the case, Morales-Santana, 137 S. Ct. at 1701, but it seems unlikely that he would have joined Justice Ginsburg’s majority opinion. But understanding the issues raised by Luis Morales-Santana’s quest for recognition as an American citizen helps to answer the obvious question that the Court’s opinion raises: why recognize a constitutional right to gender equality, but order a remedy that may not have helped anyone as a practical matter and could very well harm some women?
The Morales-Santana Court took the unprecedented step of “leveling down” on an interim basis in order to remedy the equal protection violation. What does that mean? The Court’s remedies jurisprudence has long held that there are two ways to remedy an equal protection violation: to “level up” by extending the benefit to the excluded class (here, American fathers of foreign-born nonmarital children) or to “level down” by nullifying that portion of the statute that had provided a benefit to another group (here, American mothers of foreign-born nonmarital children). Although the Court has described these two options as effectively equivalent, it had not previously leveled down as it did in Morales-Santana. The Court ordered that, on a prospective basis, the longer parental presence requirement in the derivative citizenship statute will apply to all foreign-born children of mixed-nationality couples, including the nonmarital children of American mothers.28×28. Id. at 1701 (“In the interim, as the Government suggests, § 1401(a)(7)’s now-five-year requirement should apply, prospectively, to children born to unwed U.S.-citizen mothers.”).
As I explain in Part III, the Court’s remedy calls out for clarification. The remedy is also perplexing because, while the holding rejects the gender inequalities that have long coursed through American citizenship law, the remedy may leave the particular statute at issue undisturbed, and other illiberal forces that shaped the statute at its conception unexamined. The apparent disjunction between right and remedy in Morales-Santana suggests a Court that is intent on exercising its authority while recognizing that judicial interventions that breed controversy may over time undermine that authority. Although there is much that is modern and progressive about Morales-Santana, the Court’s remedy thus reflects an institutional awareness that is almost as old as the Court itself.29×29. See, e.g., Brown v. Bd. of Educ. (Brown II), 349 U.S. 294 (1955); Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); see also infra notes 234, 236.
* Professor of Law and Peter Paul Career Development Professor, Boston University School of Law; Senior Visiting Fellow, Rothermere American Institute, Oxford University (2017–2018). The author was co-counsel on an amicus brief filed in Sessions v. Morales-Santana. See Brief Amici Curiae of Professors of History, Political Science, and Law in Support of Respondent, Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017) (No. 15-1191). Special thanks to Kerry Abrams, Michael Dorf, Sam Erman, Kari Hong, Clare Huntington, Linda Kerber, Gary Lawson, Sabina Mariella, Serena Mayeri, Hiroshi Motomura, Douglas NeJaime, Gerald Neuman, Jim Pfander, Judith Resnik, Reva Siegel, Patrick Weil, Larry Yackle, and the partic-ipants at a midsummer faculty workshop at Boston University School of Law for providing extraordinarily thoughtful feedback on earlier drafts of this Comment; to Peter Schuck for very helpful conversations about citizenship law; to Dalia Fuleihan, Dan Ordorica, and Jamie van Wagtendonk for excellent research assistance; and to the editors of Harvard Law Review for superlative editorial help.