Immigration Article of the Day: Sessions v. Morales-Santana: Beyond the Mean Remedy by JOHN VLAHOPLUS
Sessions v. Morales-Santana: Beyond the Mean Remedy by JOHN VLAHOPLUS
Connecticut Public Interest Law Journal, Forthcoming
Abstract
The Supreme Court’s recent decision in Sessions v. Morales-Santana holds that a derivative citizenship statute violated an unwed father’s constitutional rights by not according him the same right as unwed mothers to transmit citizenship to his foreign-born child. Critics have attacked the decision as cruel and merely symbolic because the Court chose a “mean remedy,” withdrawing rights from mothers rather than extending them to fathers. This article argues that the decision is far more than symbolic. It applies to immigration as well as naturalization. It establishes citizens’ rights to meaningful judicial scrutiny of some actions by Congress and the President that affect aliens with whom they have significant relationships, including actions like travel bans that affect their admission and their treatment while abroad, and it may also establish aliens’ personal rights to meaningful judicial scrutiny of those same actions.
Read critically, the decision should implicitly overrule or reverse a series of cases that grant Congress and the President broad powers over aliens, including (1) Fiallo v. Bell, which permitted similar discrimination in the context of immigration, (2) Gil v. Sessions, which upheld similar discrimination in conferring derivative citizenship on children of naturalized parents, and (3) Rogers v. Bellei, which permitted the involuntary expatriation of the foreign-born child of an American citizen. It may also implicitly overrule or undermine Mathews v. Diaz, which ratified the general principle that under “its broad power over naturalization and immigration” Congress may enact “rules that would be unacceptable if applied to citizens.” A critical reading might also show that the mean remedy is itself unconstitutional and open the door to reconsider the remedy and recognize the citizenship of Morales-Santana and others similarly situated. Justice Ginsburg’s opinion is broad and principled. It should force courts to confront the discrimination that pervades American immigration and naturalization law, and it may ultimately extend due process and equal protection farther than critics and even the Court expect.
KJ