The Supreme Court’s conservative majority signaled support on Tuesday for President Donald Trump’s bid to kill a program that protects hundreds of thousands of immigrants – dubbed “Dreamers” – who entered the United States illegally as children, even as liberal justices complained that the move would destroy lives.
The court’s ideological divisions were on full display as it heard the administration’s appeal of lower court rulings that blocked the Republican president’s 2017 plan to rescind the Deferred Action for Childhood Arrivals (DACA) program, created in 2012 by his Democratic predecessor Barack Obama.
DACA currently shields about 660,000 immigrants – mostly Hispanic young adults – from deportation and provides them work permits, though not a path to citizenship. Trump’s bid to end it is part of his hardline immigration polices.
Conservative justices questioned whether courts even have the power to review Trump’s action and also seemed to reject the views of lower courts that his administration had failed to properly justify ending DACA, a program Obama implemented after Congress failed to pass bipartisan immigration reform.
The court’s 5-4 conservative majority includes two Trump appointees – Neil Gorsuch and Brett Kavanaugh – who both indicated support for the president’s action.
Liberal justices emphasized the large number of individuals, businesses and others who have relied on the program and indicated that the administration did not sufficiently weigh those concerns. Justice Sonia Sotomayor referred to Trump’s decision as a “choice to destroy lives” and indicated that his administration had failed to supply the required policy rationale to make the move lawful.
Kavanaugh said he assumed that the administration’s analysis of the impact rescinding DACA would have on individuals was a “very considered decision.”
“I mean, this is a serious decision. We all agree on that,” Kavanaugh added.
A ruling is due by the end of June.
Trump’s administration has argued that Obama exceeded his constitutional powers when he created DACA by executive action, bypassing Congress. Trump has made his hardline immigration policies – cracking down on legal and illegal immigration and pursuing construction of a wall along the U.S.-Mexican border – a centerpiece of his presidency and 2020 re-election campaign.
The challengers who sued to stop Trump’s action included a collection of states such as California and New York, people currently protected by the program and civil rights groups.
Even if Trump were to lose this time, his administration would be free to come up with new reasons to end the program in the future, a point picked up by Gorsuch.
“What good would another five years of litigation over the adequacy of that explanation serve?” Gorsuch asked.
Conservative Chief Justice John Roberts, who could be the pivotal vote in deciding the case, likewise indicated he was satisfied with the administration’s rationale.
Roberts, however, had appeared sympathetic to Trump in a case this year on the administration’s attempt to add a contentious citizenship question to the 2020 census – a move critics said was intended to deter immigrants from being included in the nation’s official population count. Roberts cast the decisive vote against the president in a 5-4 ruling.
TRAVEL BAN
The Supreme Court previously handed Trump a major victory on immigration policy last year when it upheld as lawful his travel ban blocking people from several Muslim-majority countries from entering the United States, finding that the president has broad discretion to set such policy.
Lower court rulings in California, New York and the District of Columbia left DACA in place, finding that Trump’s move to rescind it was likely “arbitrary and capricious” and violated a U.S. law called the Administrative Procedure Act.
The young people protected under DACA, Obama said, were raised and educated in the United States, grew up as Americans and often know little about their countries of origin.
Sotomayor, the first Hispanic Supreme Court justice, wondered if the court should take into account the fact that Trump has said he would look after “Dreamers.”
“He hasn’t” taken care of them, she said. “And that, I think, is something to be considered before you rescind a policy.”
Much of the administration’s reasoning was based on then-Attorney General Jeff Sessions’ conclusion in 2017 that the program was unlawful. Liberal Justice Ruth Bader Ginsburg pressed U.S. Solicitor General Noel Francisco, who argued the case for the administration, on the government’s reliance on the assertion that DACA was unlawful.
The administration could have just said “we don’t like DACA and we’re taking responsibility for that instead of trying to put the blame on the law,” Ginsburg said.
Francisco, who also argued the travel ban case, said the administration was not trying to shirk responsibility for ending a popular program.
“We own this,” Francisco said, referring to Trump’s decision to kill DACA.
Trump has given mixed messages about the “Dreamers,” saying in 2017 that he has “a great love” for them even as he sought to kill the program that protected them from deportation.
Trump on Tuesday took to Twitter to attack “many” DACA recipients as “tough, hardened criminals,” without offering evidence, and again dangled the possibility of a deal with congressional Democrats to allow people protected under the program to remain in the United States. Trump has never proposed a detailed replacement for DACA.
Several hundred DACA supporters gathered outside the court on a gray and chilly Tuesday morning, chanting, banging drums and carrying signs that read “home is here” and “defend DACA.”
A divided Supreme Court last week blocked Commerce Secretary Wilbur Ross from adding an untested citizenship question to the 2020 census. The Court’s ruling is a victory for representative democracy over the Trump administration’s latest power play, which would have led to a dramatic undercount of the country’s noncitizen population, with substantial implications for federal funding and political representation. In the process of reaching the right outcome, however, the Court has rewritten history, with justices up and down the bench joining together to create an atmosphere of normalcy around a question that is anything but.
Coming into the Supreme Court after a series of decisive trial-court defeats, Donald Trump’s administration really had only two defenses for the citizenship question: first, that it would help the Justice Department enforce the Voting Rights Act on behalf of minority communities; and second, that the administration was simply “reinstating” a question that had a deep “pedigree” stretching back “nearly 200 years.”
The Court rejected the Voting Rights Act defense as a pretext. That was all the challengers needed legally, since the law governing federal-agency decision making requires the stated reason for an agency’s action to be the real reason. But the Court accepted much of the administration’s historical argument—which is wrong, as we explained in a law-review article based on research into centuries-old census instructions, mid-century statistical texts, and decades of congressional proceedings.
Most significant, Chief Justice John Roberts’s majority opinion and the partial concurrences are littered with assertions that the Trump administration was trying to “reinstate” the citizenship question. Even justices who were otherwise skeptical of the administration’s scheme and seemed to have a better grip on the historical record—Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor—referred repeatedly to “reinstatement.” That word obscures the nature of what the administration was trying to do.
Never in the 230-year history of the census has the complete-count questionnaire (or its equivalent) asked for the citizenship status of everyone in the country, as Ross proposed. When citizenship was asked at all, it was directed to small segments of the population, such as foreign-born men 21 or older (1890 to 1910) or foreign-born people (1930 to 1950), mainly to figure out how well they were assimilating into the United States. After the 1950 census, questions about citizenship or naturalization were confined to sample surveys that went to only a small percentage of households.
The Court acknowledged the change in census practice after 1950, but it mangled the details of the practice leading up to that point, incorrectly treating questions about “birthplace” and “citizenship” as equivalent and asserting that “between 1820 and 1950, the question was asked of all households.” The fact is that multiple censuses during that period had no citizenship question (1840, 1850, 1860, and 1880), and—as mentioned—those that did include one did not direct it at every person in a household. These various errors allowed the Court to ignore the ultimate conclusion it should have drawn from the history: The Trump administration’s gambit was unprecedented, not a return to form.
The majority opinion also soft-pedaled the Census Bureau’s decision to remove all citizenship and naturalization questions from the decennial census following the 1950 count. It is true, as the Court claims, that the bureau concluded that citizenship information had declined in importance to the government, researchers, and other users of census data by this time. But the bureau didn’t just get rid of questions that were unimportant—it overhauled its whole approach, because traditional practices were deficient in accomplishing the one thing the Constitution’s enumeration clause requires the government to do: count everyone in the country.
Traditionally, the federal government tried to do two things at once with the census: count all heads and collect other useful information. By the 1950s, the Census Bureau’s social-science skills had evolved sufficiently that it could evaluate how well it was doing its job, and it found that the second ambition was impeding the first; the count was missing millions while wasting resources. So the bureau stripped out extraneous questions from the main survey, including dozens of other “demographic questions,” as the Court called them. Census Director Robert W. Burgess explained the benefits of these changes to Congress in the lead-up to the 1960 census: “For a long time, the Census Bureau has believed that enumerators were being burdened with more instructions and work than they could effectively handle, with the result that both coverage and content suffered.
The majority similarly understated the Census Bureau’s resistance to proposals in the 1970s and ’80s that would have required it to assess everyone’s citizenship status. According to the Court, the bureau was concerned that such efforts “would discourage noncitizens from responding to the census,” and, in the words of a 1980 district-court opinion characterizing the bureau’s position, that those efforts would “inevitably jeopardize the overall accuracy of the population count.” During this period, Census Bureau Director Vincent Barabba warned that the “census is just not designed for” asking everyone’s citizenship status, and that doing so would erode “the credibility of the Bureau, and, more importantly, the credibility and public confidence in—and, indeed, the accuracy of—the figures embodied in the final census results.” Similarly, the bureau warned—in language from the 1980 case omitted by the Court last week—that “questions as to citizenship are particularly sensitive in minority communities and would inevitably trigger hostility, resentment, and refusal to cooperate.” The concern during this period, then, wasn’t some unspecified loss of accuracy due to “discouragement”; it was a full collapse of the census and everything it stands for, driven by widespread fear of, and anger toward, the government.In his partial concurrence, Breyer supplied some of this crucial context, but a majority made up of Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh overlooked it in ruling that the administration’s decision didn’t violate the Constitution’s enumeration clause. They asserted that citizenship questions have been “open, widespread, and unchallenged since the early days of the Republic.” This is preposterous. If “history matters”—as the conservative majority asserts—it must matter that Ross proposed to do something that has, in fact, never been done before. And it must matter that, for the past 70 years, the Census Bureau—the agency primarily charged with counting everyone—believed that citizenship questions and a whole host of other demographic questions didn’t belong on the decennial headcount, because they made it impossible to … count everyone. The Court thus sent the message that a citizenship question on the decennial census would be normal. The Court blocked the question because Ross lied about why he wanted it; but if he hadn’t lied, it would have been fine.
For more than a year now, the simple prospect of a citizenship question on the 2020 census has elevated vulnerable communities’ fears of the federal government. The Supreme Court’s ruling should help mitigate those fears somewhat. But the Court could have and should have taken a far stronger posture than it did, ruling not that the citizenship question was administratively imperfect, but that it was unconstitutional and un-American.
I’ll freely admit, I’m surprised. In April I predicted that the Trump administration would prevailin its effort to include a citizenship question on the 2020 census form. I based my conclusion on the combination of Congress’s broad delegation of authority to the executive branch to conduct the census in the “form and content” that the secretary of commerce determines, the historical norm of including citizenship questions, and the traditional leniency of so-called arbitrary and capricious review.
Against this legal background, I believed that — like with the travel-ban case — a chaotic process would matter less than the very broad discretion granted the president by existing law. I was wrong.
Today, Justice John Roberts joined the four more progressive judges to reach a legal conclusion (articulated in a complex series of interlocking and competing concurrences and dissents) that roughly goes as follows: Including a citizenship question in the census is not “substantively invalid.” However, the Administrative Procedure Act applies, and it is “meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.” Since the administration’s explanation for its agency’s action was “incongruent with what the record reveals about the agency’s priorities and decisionmaking process,” the administration failed to meet its APA obligations.
The secretary of commerce had pointed to an assertion from the Department of Justice that the question would assist in voting-rights enforcement. To put it simply, the majority did not buy that explanation, finding that it was more of a rationalization: The secretary of commerce decided to include the question, went hunting for a reason, and eventually got the DOJ to help.
Quite frankly, this sounds about right. As the Court put it, “the evidence tells a story that does not match the explanation the Secretary gave for his decision.” This section of the opinion is instructive:
“The record shows that the Secretary began taking steps to reinstate a citizenship question about a week into his tenure, but it contains no hint that he was considering VRA [Voting Rights Act] enforcement in connection with that project. The Secretary’s Director of Policy did not know why the Secretary wished to reinstate the question, but saw it as his task to “find the best rationale.”
A different way of putting the opinion is that the APA, at the very least, requires an honest process.
Why was this outcome different from that of the travel-ban case? In that case, the president himself offered evidence that the stated reasons for the administration’s actions were pretextual. The president himself provided evidence that anti-Muslim animus provided at least part of the justification for his order. Yet in that case the statue at issue was different. If the census statutes granted the president considerable discretion, the statute at issue in the travel ban granted him truly immense discretion, unbounded by the APA. Different statutes yield different outcomes.
So now what? There is much speculation on Twitter that the administration may have time to go back to the drawing board, conduct a proper process in accord with truthful, justifiable reasoning, and obtain legal approval in time to print the census forms.
It’s possible, but I’m skeptical. First, there are now real questions as to whether the process was improperly influenced by arguments by deceased Republican redistricting expert Thomas Hofeller that adding the citizenship question would be “advantageous to Republicans and Non-Hispanic Whites.” Evidence of racial animus would almost certainly alter the legal calculus and require the administration to go to great lengths to show that any new process has been cleansed from any racist taint.
Plaintiffs will again challenge any effort to include the question, they’ll likely obtain injunctions in favorable jurisdictions, and then the clock will become the administration’s enemy. I could well be wrong, but I’m doubtful SCOTUS will have an opportunity to opine before that clock runs out.
There is a lesson here, one that the administration (and indeed, all litigants) would do well to remember. When engaged in conduct that’s likely to lead to litigation, make it easy for the court to rule for you. Chaos can lose cases. Evidence of disingenuousness alienates judges.
Process matters, and you always want to appear to be the most reasonable party before the court. The Trump administration has gotten away with chaos before. It did not today, and as much as conservatives may once again grow angry at Justice Roberts for joining the Court’s progressive wing, if they want to place real blame for today’s Supreme Court setback, look to the administration. Its lack of candor caught up to it, and honesty may now come too late.
The one bit of good news in the SCOTUS travel ban ruling:
In Tuesday’s majority opinion upholding President Donald Trump’s travel ban, the Supreme Court also overturned a long-criticized decision that had upheld the constitutionality of Japanese-American internment during World War II.
Justice Sonia Sotomayor had mentioned the 1944 case, Korematsu v. United States, in her dissent, arguing that the rationale behind the majority decision had “stark parallels” to Korematsu; in both cases, she argued, the government “invoked an ill-defined natiounal security threat to justify an exclusionary policy of sweeping proportion.”
Writing for the majority, Chief Justice John Roberts argued that the case was not relevant to the travel ban, but went ahead and wrote that it is now overturned.
“The dissent’s reference to Korematsu … affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — ‘has no place in law under the Constitution,’” he wrote.
Korematsu arose out of President Franklin Delano Roosevelt’s 1942 executive order mandating that Japanese Americans leave their homes and jobs for internment camps. Over 117,000 Japanese were ultimately removed from their homes. Civil rights activist Fred Korematsu, who died in 2005, challenged his interment, but the Supreme Court ruled that his detention was a military necessity.
Parallels between Japanese interment and the Muslim ban had been highlighted before Tuesday’s ruling. Fred Korematsu’s daughter Karen, who now runs a civil liberties institute in his name, had filed a friend of the court briefing against the travel ban, and argued in aWashington Post op-ed last December that the policy “just as unfair” as Japanese internment.
“Korematsu is a reminder that while we may sometimes be afraid during times of crisis, fear should not prevail over our fundamental freedoms.,” she wrote at the time.
Both liberal and conservative justices have criticized the Korematsu decision in the past, but it was never formally overturned.
In 1995, liberal Justice Ginsburg wrote in a dissent that “a Korematsu-type classification … will never again survive scrutiny,” conservative Justice Antonin Scalia said in a speech that it was wrong but warned that it could happen again. “In times of war, the laws fall silent,” he said.
In the majority opinion Tuesday, Roberts quoted from Supreme Court Justice Robert Jackson’s famous dissent in Korematsu.
Jackson, who later served as a chief prosecutor for the U.S. in the Nuremberg trials of Nazi war criminals, argued that the majority decision upholding internment would set a bad precedent.
He noted that a military order would eventually lapse, but a judicial opinion would validate racial discrimination by creating new principles to justify it.
“The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need,” he wrote.
After a terrorist attack in San Bernardino, Calif., during the 2016 campaign, Trump called for a ban on Muslims entering the United States, comparing it to Roosevelt’s executive order authorizing internment. In a later interview with TIME, he would not unequivocally repudiate the internment camps.
“I certainly hate the concept of it. But I would have had to be there at the time to give you a proper answer,” he said.
Recently, Trump Administration attorneys favorably invoked Hirabayashi v. United Statesin a legal briefing on a case involving Guantanamo Bay detainees, a World War II-era decision which was a basis for Korematsu.
A senior research fellow in computational social science at the University of Oxford, Yasseri’s work on big data and election predictions has brought him around the world, including to the U.S. just this past March. But American politics finally got in the way. He said that a consulate officer explained to him that President Donald Trump’s so-called travel ban had made his requests to get to the campus in Evanston, Illinois, more complicated than usual.
“I appreciated his honesty,” Yasseri told The Daily Beast. “To be honest, I’ve been lucky in that I’ve always been granted a [single-entry] visa.”
Stories of upended travel, aborted education plans, and stymied research projects are becoming more common in the world of Science, Technology, Engineering and Mathematics (STEM) and academia. And they may soon become even more so.
On Tuesday, just one day after Yasseri’s visa request was denied, the Supreme Court ruled in Trump v. Hawaii that the president’s travel ban—in place even while under legal challenge—was, indeed, constitutional. The decision meant the policy will remain in place. And it left academics and scientists fearful that the United States may witness a drain of intellectual talent in the coming years.
Handed down by a 5-4 majority, the ruling prohibits citizens from seven countries—Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—from entering the country due to the “national security threat” they supposedly pose.
Scotus Ruling Will Embolden Trump to Expand the Ban
Critics had argued that the policy was fundamentally racist as it was built on the foundation of Trump’s campaign pledge to stop all Muslims from entering the United States. But over the course of his presidency, Trump narrowed down the policy, including by adding two non-Muslim majority countries to the list.
That proved enough to negate the constitutional concern. But those in the STEM fields say that the practical impact of the ban will be the same as the original incarnation.
“We’re deterring people from coming here,” said Vivek Wadhwa, a professor of entrepreneurship at the Pratt School of Engineering at Stanford University. “America is now considered hostile to foreigners. Before they can even want to come, they’re turned away.”
The ripple effects of that hostility could be profound, Wadhwa predicted. In the 2012 paper he co-authored, titled “America’s New Immigrant Entrepreneurs: Then and Now,” Wadhwa noted that more than a quarter of American engineering and technology startups were founded by immigrants and that in Silicon Valley, nearly half of startups are immigrant-founded. When it came to patents, more than 60 percent of filings were done by immigrants; over 40 percent of international patent applications on behalf of the American government included an author who wasn’t an American citizen.
The travel ban could fundamentally change the American economy by drying up that source of innovation.
“With this brain drain happening, we’re arming our competitors in China and South America with the greatest threat to American security,” said Wadhwa. In particular, there’s the fact that “we’ve been training the smartest students from China and sending them back home,” he said. “China is catching up to America in artificial intelligence and gene editing and robotics. We never thought China would be able to compete with the U.S. but China is on par with the U.S. right now.”
Even before the Supreme Court’s decision on Tuesday, the effects of the ban were become evident in a variety of fields. Dr. Atul Grover, the executive vice president of Association of American Medical Colleges, said that over the preceding year, there had been about a 22 percent drop in the number of people requesting a student visa from the seven countries on the president’s list.
“For a one year difference that is pretty significant,” Grover said.
But, he added, the actual impact is likely to be even more severe. He expected prospective medical students from countries not on the current list to balk at applying to schools in the United States out of fear that their nations may be added by Trump at a later date. In addition, students with spouses from countries currently under the ban would have to weigh the possibility of splitting up their family if they choose to study in the United States.
“We are already looking at a physician shortage,” Grover said. “While we have increased the number of graduates from U.S. medical schools, we are still reliant on international graduates to serve people, particularly in underserved areas. That will be harder and harder to fill these positions if we have fewer applicants. Or it may be that these applicants are as qualified as they are in the past. We’ve had our choice of the best and the brightest in the past. But now, people might look elsewhere.”
Under the travel ban, individuals from the seven targeted countries can still apply for, and be granted, student and exchange visas. But the incentives for requesting each are greatly diminished. Progress in STEM fields take an immense amount of work and time, from producing the research, to building a company, to seeking investment of capital. If a ban or the threat of deportation holds, that incentive to stay in the country is diminished.
This will impact both those here and those seeking to come. According to data provided by the Institute of International Education, there were 25,751 students from the seven banned countries who studied in the United States during the 2016-17 calendar year. Advocates expect that number to diminish and those students to look abroad for career opportunities.
Meanwhile, the Department of Justice reported that the number of visas issued by the to students from Iran, Libya, Yemen, and Somalia in the first three months of this year was just 298. “This is less than a quarter of the volume needed to be on track for 2016 student visa levels,” the last full year before the ban took effect, Justice Stephen Breyer noted in his dissenting opinion.
Educators, likewise, will face diminished incentives to work at, or even collaborate with, U.S. institutions. In Yasseri’s case, the inability to attend the conference at Northwestern was a major professional setback, depriving him the opportunity to present groundbreaking research, network with others in the field, and participate in a conference that he helped coordinate and plan.
It’s one of the reasons why Yasseri—who is set to become a British citizen by the end of the year—said he has never entertained the United States as a potential research destination. He left for Europe 12 years ago from Iran, and while many of his friends went to the America, he found the single entry visas students had to deal with cumbersome. “If they left the country, they had to reapply for a visa,” he pointed out. “I didn’t want to be trapped in a single country.”
So Yasseri went around that. He earned his Ph.D. in Germany and is conducting research in the United Kingdom. With a British passport, he thinks traveling to the United States might become easier, and he might even look into doing a sabbatical in the U.S.
But settling in America permanently remains out of the question.
“Even if I got a visa, my family would not be able to visit,” Yasseri said.
Same logic would apply in Canadian cases of misrepresentation, whether it was material or not:
The justices unanimously rejected the government’s position that it could revoke the citizenship of Americans who made even trivial misstatements in their naturalization proceedings.
During arguments in April, several justices seemed indignant and incredulous at the government’s hard-line approach in the case, Maslenjak v. United States, No. 16-309.
They asked about a form that people seeking American citizenship must complete. It requires applicants to say, for instance, whether they had ever committed a criminal offense, however minor, even if there was no arrest. A government lawyer, in response to questioning, said that failing to disclose a speeding violation could be enough to revoke citizenship even years later.
Writing for the majority, Justice Elena Kagan said that the law required a tighter connection between the lie and the procurement of citizenship.
“We hold that the government must establish that an illegal act by the defendant played some role in her acquisition of citizenship,” she wrote. “When the illegal act is a false statement, that means demonstrating that the defendant lied about facts that would have mattered to an immigration official, because they would have justified denying naturalization or would predictably have led to other facts warranting that result.”
The case concerned Divna Maslenjak, an ethnic Serb who said she had faced persecution in Bosnia. She was granted refugee status, at least partly on that basis, and became a United States citizen in 2007.
In the process, she made a false statement about her husband, saying she and her family had also feared retribution because he had avoided conscription by the Bosnian Serb military. In fact, he had served in a Bosnian Serb military unit, one that had been implicated in war crimes.
When this came to light, Ms. Maslenjak was charged with obtaining her citizenship illegally. She sought to argue that her lie was immaterial, but the trial judge told the jury that any lie, however significant, was enough. Ms. Maslenjak was convicted, her citizenship was ordered revoked, and she and her husband were deported to Serbia.
The Supreme Court, having ruled that Ms. Maslenjak had been convicted under the wrong standard, returned the case to the lower courts to consider whether the government may try the case again under the stricter standard.
Given the significance of Ms. Maslenjak’s lie, she may lose again in a retrial.
Surprising it took this long for a case to test the discrimination:
The Supreme Court on Monday struck down a federal law that treats children born overseas to unmarried parents differently for purposes of citizenship depending upon whether the biological father or mother is a US citizen.
Under the law, US citizen fathers have to spend at least five years in the states before the child could become a citizen, while the mother only had to spend one year.
The plaintiff in the case, Luis Ramon Morales-Santana, was born in 1962 in the Dominican Republic to unmarried parents. His mother was a citizen of the Dominican Republic and his father was a US citizen who had not spent more than five years in the United States after his 14th birthday.
Morales-Santana was admitted to the US as a lawful permanent resident in 1975. After years of living in the US he was put in removal proceedings after convictions for various felonies. He claimed he was a US citizen because of his father’s citizenship. But the Board of Immigration Appeals denied the claim because the father had not satisfied the physical presence requirements.
Justice Ruth Bader Ginsburg, who dedicated her career to the issue of gender discrimination before taking the bench, wrote the decision.
The section of the 1952 Nationality Act, she wrote, could not “withstand inspection under a Constitution that requires the government to respect the equal dignity and stature of its male and female citizens.”
But while the law “violates the equal-protection principles,” the court also said it is “not equipped” to grant the relief that Morales-Santana seeks — striking down the law and grant him citizenship. Congress would have to make that determination, Ginsburg wrote.
Under the Immigration and Nationality act of 1952 as originally written, a child born outside of the United States to an unwed citizen father and a non-citizen mother has citizenship at birth only if the father was present in the United States for a period totaling at least 10 years, with at least five of those years occurring after the age of 14. But the statute has since been amendedto decrease the time requirement for those born since November 14, 1986, to 5 years in the United States, at least two of which were after age of 14. A child born abroad to an unwed citizen mother has citizenship if the mother lived in the United States for at least one year at some point prior to the child’s birth.
Multicultural Meanderings 