Tuesday, June 13, 2017
The Judgment in Morales-Santana (SCOTUS Symposium)
Howard and Ian have both posted about today's opinion in Sessions v. Morales-Santana, in which the Court held Section 309(c) of the INA unconstitutionally discriminatory, but then held that the remedy was to apply the stricter rule across the board ("leveling down," or what Ian calls "the mean remedy") rather than the more lenient rule ("leveling up"). (And here's Asher Steinberg with thoughts on implications for the travel ban.) I have given some thought to the leveling down/leveling up problem, and once tried to write an article about it, but I ended up shelving it in part because the problem was too hard.
For now, though, I have a more basic question about the judgment in the case. Justice Ginsburg's opinion ends "The judgment of the Court of Appeals for the Second Circuit is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion." The Second Circuit, for its part, had concluded that "Morales-Santana is a citizen as of his birth," and reversed and remanded the Bureau of Immigration Appeals. But what part of the Second Circuit's judgment, exactly, did the Supreme Court actually affirm?
Normally the Supreme Court affirms in part and reverses in part when the lower court's judgment extended to two separate claims, and got one of them right. Here, so far as I can tell, there is only one bottom-line claim -- whether Morales-Santana is a citizen or not -- though there are two different legal questions on the way to answering it.
To be sure, the Supreme Court agreed with part of the Second Circuit's opinion (the part holding the statute unconstitutional) but it seems to disagree entirely with its judgment. The Second Circuit reversed the BIA. The Supreme Court held that the Second Circuit should have affirmed the BIA on alternate grounds. (And as the Supreme Court sometimes says, it reviews "judgments, not opinions.") So shouldn't the Supreme Court have just reversed the Second Circuit, and if not, what part of its judgment (as opposed to its opinion) did the Court affirm?
One possibility is Mark Tushnet's suggestion that the Court is actually requiring the executive branch to exercise prosecutorial discretion in favor of Mr. Morales-Santana if possible, but nobody else seems to share that reading of the opinion and I don't think I do either.
Another possibility is that the Court thinks that "holding a statute unconstitutional" is somehow a separate part of the judgment, something that can be affirmed separate and apart from any actual constitutional claim or remedy that is sought in the case. I don't think that's how federal courts work, but it is a conception of judicial power I see floating around sometimes.
A third possibility is that the opinion was forged in compromise, and it was important to some members of the Court to get "affirmed" somewhere into the judgment line, even if it wasn't clear why.
The fourth, and most likely, possibility is that I am missing something.
Mark Tushnet has provides a good explanation for how his reading of the opinion would solve the affirmed in part/reversed in part puzzle: https://balkin.blogspot.com/2017/06/the-remedy-in-morales-santana-again.html
Posted by: William Baude | Jun 14, 2017 12:01:55 AM
On a related note, surprised no one has yet remarked on the other way in which RBG's is a "good for the goose . . . " opinion (other than the merits, that is). Subtext: "If the Chief can unnecessarily opine at length on the Commerce and N&P Clauses in NFIB v. Sebelius . . . . " (Actually, hers is probably more justifiable, for the reasons she suggests in note 21: at least the Court's disposition actually does eliminate unconstitutional discrimination.)
Posted by: Marty Lederman | Jun 13, 2017 7:35:56 AM
"Another possibility is that the Court thinks that "holding a statute unconstitutional" is somehow a separate part of the judgment, something that can be affirmed separate and apart from any actual constitutional claim or remedy that is sought in the case."
Thanks for the link. This is a question a bit above my pay grade, but it seems to me that the possibility I've quoted above ("#2" for those keeping score at home) is perhaps reflected by the opinion itself. At footnote 21, page 23, the Court very cryptically explains, in reply to Justice Thomas, why it was necessary to reach their constitutional holding even if Morales-Santana wasn't entitled to a meaningful remedy; "discrimination itself," they say, "perpetuates archaic and stereotypic notions incompatible with the equal treatment guaranteed by the Constitution." One way to read that is, hey, everything that comes before this moment in the opinion isn't unnecessary or even dicta, contrary to what Justice Thomas says, because in invalidating the statute at least we've freed Morales-Santana (or his father) from discrimination itself and the archaic and stereotypic notions that come with it, and that itself is a concrete thing the Court does and not just a reason for its ultimate remedial judgment, whether it be leveling down or leveling up. (I would say that it's more correct to say that eliminating differential treatment is an aspect of whatever remedy the Court might choose, and that in rejecting the Second Circuit's remedy they reversed its judgment, rather than saving the half of the judgment that got rid of "discrimination itself.") Then in the beginning of the concluding part of the opinion, they emphatically say that "the Court of Appeals correctly ruled" on the constitutional question, which by itself doesn't mean anything but seems to cohere with or anticipate a theory on which they've affirmed half of the judgment. Finally, it's not as if the Second Circit was simply reversed in the sense that Morales-Santana no longer gets his citizenship, so you can see why they wouldn't say so; one way to read the last operative sentence of the opinion is as a kind of injunction to the government to apply the 5-year requirement prospectively to unwed mothers, even though, as Professor Wasserman has suggested in the comments on his post, the Court shouldn't be able to make the government do that in this case. If we read this opinion to have actually ordered leveling down, one could reason, incorrectly, that the Second Circuit must have been affirmed in part, because its constitutional holding had to be affirmed in order for the Court's judgment to order leveling down; where this falls apart, of course, is that the constitutional holding wasn't really part of the Second Circuit's judgment.
Posted by: Asher Steinberg | Jun 13, 2017 2:09:19 AM
Some combination of #2 and #3. In an ordinary constitutional challenge, a declaratory judgment would be part of the mix, so that might be affirmed, even if the injunction is not. That does not work here, in a BIA appeal. But the Court sometimes forgets those small details.
Posted by: Howard Wasserman | Jun 13, 2017 1:40:35 AM