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Monday, June 12, 2017

SCOTUS Symposium: Remedies and constitutional litigation (updated)

I do not teach or write in Remedies, except to the extent that basic remedial principles arise in more general Civ Pro or § 1983 work. Even in that context, I had not considered the special problems of ensuring equality through an injunction. In the First Amendment context, it is easy: Stop enforcing the prohibition on nude dancing or leafletting on the sidewalk and let the plaintiff have nude dancing in his bar or leaflet on the sidewalk. When the claim is that the laws are treating one group differently than the other, there are two choices: Extend the advantageous treatment to the disadvantaged group or extend the disadvantage to everyone. And that depends on statutory design.

This was the problem for the Court in today's decision in Sessions v. Morales-Santana. Federal law must provide rules for when to accord citizenship at birth to children born outside the U.S. where one parent is a citizen. The law imposes on the citizen parent a five-year (two years since age 14) pre-birth residency requirement in order for the citizen parent to transmit citizenship at birth to the child. And that rule controls three situations: Married parents where the father is the citizen; married parents where the mother is the citizen; and unmarried parents where the father is the citizen. The statute then frames an exception to that rule for unmarried parents where the mother is the citizen, who only must have lived in the U.S. for one year pre-birth. The majority held that this less-favorable treatment for unmarried fathers violated equal protection.

But then what?

Morales-Santana was born in the Dominican Republic to a U.S. citizen father and a Dominican mother; the father was 20 days short of satisfying the statutory requirement for transmitting citizenship at birth. What Morales-Santana wanted from the Court was to apply the unmarried-mother rule to unmarried fathers, which his father satisfied, and which would make him a citizen at birth.* He would get that relief if the Court followed its ordinary equal-protection approach of extending the benefit (one-year residency) to the disadvantaged person. But the Court could remedy the equal protection violation a different way: Eliminate the favorable treatment to the differentially treated group (unmarried-mother citizens) and subject everyone to the five-year/two-year rule. That eliminates the equal protection problem, but does not make Morales-Santana a citizen at birth or entitle him to a suspension of removal.

[*] Morales-Santana was trying to avoid deportation as a result of some state criminal convictions.

The Court chose the latter, because the former would be inconsistent with congressional intent and the structure of the law and would disrupt the statute. The rule for unmarried-mother citizens is framed as an exception to the general rule, suggesting that Congress saw the five/two residency rule as the norm. And if the Court extended the one-year rule to unmarried-father citizens (Morales-Santana's preference), it would have produced a system in which married parents were treated less favorably than unmarried parents, itself raising constitutional problems. And the Court believed that Congress would not have wanted all parents (married and unmarried, mother or father) subject to the one-year rule, otherwise Congress would have made one year the rule, not a one-provision exception.

But does the Court ordinarily look to groups not before the Court in creating remedies? The provisions for married parents are in 8 U.S.C. § 1401, while the provisions for unmarried parents are in § 1409. So the Court could have said the equal protection problem is in § 1409, extended the favorable rule to all, then worried about the equal protection problems as between § 1401 and § 1409 in a later case. But that still left the problem within § 1409, in which the provision for unmarried-father citizens was in (a) and for unmarried-mother citizens was in (c) and written as an exception to (a) ("Notwithstanding the provision of subsection (a) of this section . . .").

Update: From Mark Tushnet at Balkinization:

[M]y initial reaction is that that argument is incomplete, because it doesn't take account of the Court's statement that, pending a statutory revision, the "Government must ensure that the laws in question are administered in a manner free from gender-based discrimination." What could that mean? My (relatively uninformed) take is this: Where (a) the gender-based provision would have immediate legal consequences (as in triggering Morales-Santana's eligibility for removal), and (b) the law gives the government discretion in administering the law (for example, discretion to suspend removal), that discretion should be exercised in a way that would eliminate the legal effects of the gender-based discrimination. So, in short, if there's discretion to suspend Morales-Santana's removal, he should get to stay in the United States.
Mark quotes from p.2 of the slip op., the end of the Introduction. But at the end of the body of the opinion (p.28 of the slip op.), the Court says "[i]n 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." It seems to me that means the government is free to remove Morales-Santana, because he is not a citizen-at-birth under the applicable provision. And that provision is no longer discriminatory; the discrimination was removed by the order/agreement not to treat as citizens at birth those born to unmarried-mother citizens. The Court did not order the government to suspend Morales-Santana's removal or order the lower court to consider that. And the provisions at issue do not allow of executive discretion.

Posted by Howard Wasserman on June 12, 2017 at 02:26 PM in 2018 End of Term, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


@Mark Tushnet
I don't think Morales-Santana is eligible for a 212(h) waiver because he is an aggravated felon that was admitted as an LPR. See INA 212(h)(2).

Posted by: brad | Jun 13, 2017 10:59:41 AM

That FN said the courts "invalidated the provisions." I read that to mean the gender-disadvantaging provisions could not be enforced as to the women plaintiffs. In looking at the cases cited, it seems the procedural context matters. For example, the first case was Homemakers, Inc., from the Ninth Circuit. State law required women be paid more and the challenge was brought by an employer who wanted to avoid paying those salaries. That seems a different remedial context than a challenge brought by a woman being paid less and seeking to earn what everyone else earns.

Posted by: Howard Wasserman | Jun 13, 2017 8:07:20 AM

I'm not an immigration law specialist, but a Google search turned up a guide for practitioners that says this: "Non-citizens who are placed in removal proceedings, are often deportable because they are inadmissible to the US. A defense to a charge of removability for being inadmissible due to a criminal conviction, may be defended with an application for a Waiver of Inadmissibility. A waiver of inadmissibility for criminal conduct can be found in INA Section 212(h). The 212(h) waiver is available to non-citizens with criminal convictions, in the discretion of the Attorney General." There are a bunch of other qualifications, but it looks to me as if there is some discretion available under this provision. (The Court's opinion doesn't tell us what crimes Morales-Santana committed, and the Second Circuit opinion says only "various felonies." That's why I wrote that the sentence I highlighted directs the government to exercise whatever discretion it had, without saying that, in this particular case it had discretion.

Posted by: Mark Tushnet | Jun 13, 2017 4:45:28 AM

Actually Howard, the opinion in this very case mention that in cases of labor laws requiring a higher minimum standard for women, courts have often opted for applying the minimum level for all, rather than the maximum. (It is of course not clear that a $15.00 minimum wage is a benefit and not a disincentive for employment.)

In many E/P cases the case would be started by a lawsuit challenging the allegedly discriminating law. If so, a court could grant injunctive and declaratory relief, and a party would presumably have standing to ask for a court order directing other people to be treated the same, even if this does not improve his own situation.

Posted by: Jr | Jun 13, 2017 3:43:49 AM

No. In most E/P cases, the remedy is to apply the more-favorable rule to the discriminated-against party. So, if the statute said "Minimum wage for men is $ 15.00 while minimum wage for women is $ 10.00," the remedy would be to require that women receive the higher minimum wage. Or, to use your sentencing example, if the statute said "The sentence for men is 10 years while the sentence for women is 5 years," the remedy would be that the man would be sentenced to 5 years.

In this case, that could have meant applying the one-year residency rule to unmarried-father citizens, which would have made Morales-Santana a citizen. But that is what the Court said it could not do, given the structure of the law and congressional intent.

Posted by: Howard Wasserman | Jun 12, 2017 5:28:15 PM

Wouldn't this be the same problem for virtually all equal protection claims? E.g., if a state provides for two different punishments for the same crime, depending on the race of the perpetrator, ehat should the remedy be?

Posted by: biff | Jun 12, 2017 5:10:55 PM

As for what happens going forward: The Court punted to Congress to come up with a rule that treats all parents (of all marital statuses and all sexes) equally. In the interim, it must apply the 5/2 rule to everyone, which is what the government argued should be the case.

In a departmentalist sense, I suppose even that is not binding. If the government wanted to keep treating unmarried-mother citizens more favorably, this judgment, applicable only to Morales-Sanatna, would not stop them. But I think that's moot, because the government is perfectly happy to treat everyone less favorably, so you will not see the conflict.

Posted by: Howard Wasserman | Jun 12, 2017 4:34:16 PM

He didn't and won't. He is subject to deportation because he was not a citizen at birth even under the constitutionally valid rule--all parents must meet the 5/2 residency requirement. And his father didn't.

This is why Thomas and Alito concurred in the judgment. Because Morales-Santana could not get any remedy, the Court should not have reached the constitutional questions. The suit should have been rejected for the absence of any remedy. Interestingly, Thomas did not speak in terms of Article III or standing, although that seems what he wa getting at.

Posted by: Howard Wasserman | Jun 12, 2017 3:58:08 PM

I have got lots of questions on this case, and how it fits with the departamentalist view you propose.

What remedy exactly did Morales-Santana get? Will he get an injunction on remand binding the government to deport people who are in a similar situation but with gender-swapped parents? Or is it the precedential effect of the SC opinion that supplies the remedy?

If the latter is the case, then it seems that only the Supreme Court could supply this particular form of remedy. This sits oddly with the view that the Supreme Court is deciding individual cases in basically the same way as lower courts. It would suggest a party might want to appeal to the Supreme Court, not because they disagree with the lower court's ruling, but because the lower court can not grant them full relief.

Posted by: Jr | Jun 12, 2017 3:38:54 PM

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