Prof. Kit Johnson Quoted In Bloomberg BNA on Immigration Discrimination

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Original story - Bloomberg BNA - United States Law Week

Immigration Discrimination? SCOTUS Says No

Posted June 12, 2017, 10:32 A.M. ET


Kimberly Strawbridge Robinson

The U.S. Supreme Court signaled June 12 that it will closely scrutinize the rationale behind immigration laws (Sessions v. Morales-Santana, U.S., No. 15-1191, 6/12/17).

That’s bad news for the Trump administration, which is currently asking the justices to reinstate its controversial executive order banning travel of certain individuals from six predominantly Muslim countries. The Supreme Court hasn’t weighed in on that request in an unrelated case.

Here, though, the justices said Congress can’t make it harder for unwed fathers to confer citizenship on their children born abroad than unwed mothers.

The government had argued that Congress is entitled to “great deference” from the courts in the immigration sphere, an argument it’s also making in the travel ban cases.

The Supreme Court didn’t agree. Instead, it reviewed the laws under the “heightened scrutiny” standard applicable to laws of domestic application.

The fact that a law touches on immigration is no longer the “overriding, dominant factor” precluding judicial review that it has been in the past, Gabriel Chin, an immigration professor at University of California, Davis School of Law, told Bloomberg BNA June 12.

But distinctions between citizenship—at issue in Morales-Santana—and entry of aliens—at issue in the travel ban case—could cause the Supreme Court to “give Morales-Santana short shrift when considering analogous” discrimination issues in the travel ban case, immigration professor Kit Johnson, of University of North Dakota School of Law, Grand Forks, N.D., told Bloomberg BNA in a June 12 email.

Motives Matter

Until recently, the longstanding doctrine of “plenary power” precluded courts from second guessing Congress or the president on immigration matters. The court famously relied on that doctrine in refusing to strike down a law that prohibited Chinese laborers from immigrating to the U.S.

But cracks in that doctrine have developed in recent decades, Chin said.

In particular, courts have been subjecting immigration laws to the same kinds of requirements that are applicable to domestic laws, he said. They’ve been “domesticating constitutional immigration law,” Chin said.

The court’s decision here further signals “a greater willingness by the court to apply regular constitutional rules and heightened scrutiny to immigration laws enacted by Congress,” Jennifer Koh, an immigration professor at Western State College of Law, Irvine, Calif., told Bloomberg BNA in a June 12 email.

That could mean that the Supreme Court “is prepared to play a more active role in aligning the immigration laws with mainstream constitutional principles and norms,” including examining the motives behind immigration laws, she said.

Providing a Glimpse

Motives are at the heart of the travel ban litigation that’s now come before the justices.

Challengers of the executive order say that the president’s policy was motivated not by national security—as the administration argues—but instead by animus toward Muslims. Such a discriminatory purpose runs afoul of the establishment clause’s prohibition of favoring one religion over another, the challengers claim.

Lower courts temporarily halted the executive order, with some finding that the order was motivated by a discriminatory purpose.

It will likely be a while before we know if the Supreme Court agrees—if we hear at all. The Supreme Court hasn’t agreed to hear the case yet, but they may agree to hear it before the end of the term this month.

The court’s decision here may provide a glimpse of how the court will approach the issue, if it eventually agrees to take it up.

Overbroad Generalizations

The statute at issue provides birthright citizenship for some children born abroad of U.S. citizen parents. To confer citizenship, unwed fathers must show that they lived in the U.S. for at least five years prior to their child’s birth. Unwed mothers only have to have lived in the U.S. one year.

Luis Ramon Morales-Santana wanted to claim citizenship though his father to avoid deportation. But his father fell just 20 days short of the requisite presence in the U.S to confer citizenship.

The Supreme Court, though, said the gender distinction violated equal protection.

The law dates “from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are,” Justice Ruth Bader Ginsburg wrote for the court. “During this era, two once habitual, but now untenable, assumptions pervaded our Nation’s citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate, unwed mother is the natural and sole guardian of a nonmarital child,” she said.

“Today, laws of this kind are subject to review under the heightened scrutiny that now attends ‘all gender-based classifications,’” the court said. The law at issue here couldn’t pass that test, it said.

Surprising Remedy

But that’s little help to what could be thousands of individuals seeking U.S. citizenship as a result of the court’s opinion.

That’s because the court imposed, in the interim, the stricter standard to both unwed mothers and fathers, rather than applying the less stringent one. The court left it to Congress to design a permanent non-discriminatory scheme.

That interim remedy was surprising, Chin said, as courts typically extend the beneficial treatment in equal protection cases, rather than take it away.

But that’s likely the choice that Congress would have made if put to the choice, the Supreme Court said, looking at the statute as a whole.

Going forward, the decision will make it more difficult for individuals born abroad to claim citizenship through an unwed U.S. citizen mother, Koh said. But the effect will be “narrow,” she added. The standard remains the same as it has always been for those claiming citizenship through an unwed father, and even to married parents.

Citizenship Versus Exclusion

Johnson thought the effect of the decision would be even narrower. It likely won’t significantly affect how the court approaches other immigration laws, including the travel ban, she said, disagreeing with Koh and Chin.

The case is about citizenship, she said. “While citizenship and immigration are frequently considered together—especially since many migrate with the goal of achieving citizenship—they are distinct issues.”

In particular, because it “isn’t about immigration in the sense of the admission or exclusion of non-citizens,” it likely doesn’t affect the plenary power doctrine, Johnson said.

Indeed, the court specifically distinguished its 1977 decision in Fiallo v. Bell, upon which the government relies in the travel ban cases, to discourage judicial review.

“Applying minimal scrutiny” in Fiallo, the court “upheld the provision, relying on Congress’s ‘exceptionally broad power’ to admit or exclude aliens,” the court said here. “This case, however, involves no entry preference for aliens,” it said.

Blind Eye

The case won’t be irrelevant to the travel ban challenges, though, Johnson said.

In particular, the court made clear it wouldn’t accept “post hoc rationalizations” for laws that were invented during litigation.

Lower courts considering the travel ban “have specifically identified as problematic the differences between the government’s briefs ('post hoc in response to litigation') and pre-enactment statements,” Johnson said.

This decision indicates that “the Supreme Court won’t turn a blind eye to discrimination based on after-the-fact rationalizations crafted for the purposes of litigation,” Johnson said.

The court’s decision was unanimous. Justice Clarence Thomas, joined by Justice Samuel A. Alito Jr., wrote separately concurring in the judgment only.

Stephen A. Broome of Quinn Emanuel Urquhart & Sullivan LLP, Los Angeles, argued for Morales-Santana. Edwin S. Kneedler of the Justice Department, Washington, argued for the federal government.