Sessions v. Morales-Santana: The Problems of Leveling Down

On June 12, 2017, the Supreme Court issued its decision in Sessions v. Morales-Santana, holding that the different treatment of unmarried mothers in INA §309(c), 8 U.S.C. §1409(c), was unconstitutional as a violation of equal protection.  Unfortunately, while the Court agreed with the Court of Appeals for the Second Circuit that there had been such a violation, the Court selected a different remedy for this violation that appears not to have helped Mr. Morales-Santana himself or, at least from a concrete perspective, anyone else.  This decision creates a number of problems, some obvious and some less so.

Luis Ramon Morales-Santana was born in the Dominican Republic in 1962 to a Dominican mother, Yrma Santana Morilla, and a U.S. citizen father, José Morales, who had been born in Puerto Rico in 1900.  “After living in Puerto Rico for nearly two decades, José left his childhood home on February 27, 1919, 20 days short of his 19th birthday,” as the Supreme Court explained, in order to work “for a U.S. company in the then-U.S.-occupied Dominican Republic.”  José and Yrma were married in 1970, and Luis Ramon Morales-Santana moved to Puerto Rico when he was 13 and then to the Bronx later in his childhood.

Mr. Morales-Santana was placed in removal proceedings in 2000 based on several criminal convictions, and his claim to U.S. citizenship was rejected by an immigration judge on the basis that his father did not have sufficient physical presence in the United States prior to Morales-Santana’s birth to transmit U.S. citizenship to him.  Under INA §301, 8 U.S.C. §1401, and specifically the provision of that statute which was formerly INA §301(a)(7) and now appears at INA §301(g), an unmarried U.S. citizen father, or a married U.S. citizen parent of either gender, must have accrued a relatively lengthy period of physical presence in the United States (or constructive physical presence based on certain qualifying employment by them or by their parent) in order to transmit citizenship to a child whose other parent is not a U.S. citizen or national.  The version of INA §301(a)(7) in effect when Morales-Santana was born in 1962 required that the father have been present for ten years, five of which had to have been after the age of fourteen, and so José Morales was held to have fallen short by 20 days, having left the United States 20 days before his nineteenth birthday.  The current version of INA §301(g) requires only five years of physical presence by the U.S. citizen parent, two of which must be after the age of fourteen, but it does not operate retroactively and so was no help to Morales-Santana.

If Morales-Santana had been born to an unmarried U.S. citizen mother rather than an unmarried U.S. citizen father, however, the applicable rule under the statute would have been different.  Under INA §309(c), as it existed at the time of Morales-Santana’s birth and as it exists (at least in the statute books) today, a U.S. citizen mother need only have one continuous year of physical presence in the United States in order to transmit citizenship to her out-of-wedlock child.  José Morales would easily have satisfied this requirement.

Before the Second Circuit, Morales-Santana argued first that he was actually entitled to U.S. citizenship under the statute as written, because his father’s time working for a U.S. company in the U.S.-occupied Dominican Republic should count towards the physical-presence requirement, and second that the distinction between the §301(a)(7) requirement for unmarried fathers and the shorter §309(c) requirement for unmarried mothers was unconstitutional gender discrimination.  The Second Circuit rejected the former argument, holding that José Morales’s employment with the South Porto Rico Sugar Company was not the sort of employment with the U.S. government or a public international organization that would qualify as constructive physical presence under §301(a)(7), and that the Dominican Republic was not a U.S. possession for these purposes in 1919 even though it was occupied by the U.S. military.  It accepted the latter argument, however, and held that to remedy the gender discrimination inherent in the statute, Morales-Santana should receive the benefit of §309(c) and be deemed a U.S. citizen as of his birth.

The Supreme Court in Morales-Santana agreed that the different treatment of unmarried fathers and unmarried mothers with regard to the required length of physical presence was an equal-protection violation, but disagreed with the Second Circuit on the appropriate remedy for this violation.  Rather than choosing to extend the benefits of INA §309(c) / 8 U.S.C. §1409(c) to Mr. Morales-Santana and others disadvantaged by the equal-protection violation, what commentator Michael Dorf referred to as “levelling up”, the Court determined that “levelling down”  and withdrawing the benefits of §309(c) from those to whom it applied was more consistent with Congressional intent, because §309(c) was merely an exception to the broader and stricter rule of INA §301(a)(7) / 8 U.S.C. §1401(a)(7).  “Going forward,” the Court said, “Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender.”  Until Congress does so, however, the Court held that “[i]n the interim . . . §1401(a)(7)’s now-five-year requirement should apply, prospectively, to children born to unwed U.S.-citizen mothers.”  It seems very likely, although the decision did not make this explicit, that prospective application in this context refers to children born after the date of the Court’s decision, since those born before the decision to whom §309(c) applied would already have acquired citizenship at birth as a matter of law, whether this citizenship had yet been recognized by any administrative agency or not.

The Court’s choice of remedy, which Professor Ian Samuel described as “the mean remedy”, has attracted a great deal of commentary, much of it critical. This commentary is worth the reader’s time, but it is my hope that I may have some additional observations which have not previously been addressed by other commentators.

One problem caused by the Court’s choice of remedy in Morales-Santana, which has been hinted at in some other commentaries but not fully explored, is that the specific equal-protection violation at issue in the case has not actually been remedied by the Court’s decision.  If Mr. Morales-Santana had been the out-of-wedlock child of a woman named Josephine Morales rather than a man named José Morales, but every other fact of his case had remained the same, then he would be a citizen today.  Sons and daughters born in 1962 to unmarried women who met the one-year physical presence requirement are now citizens, under existing law.  But Mr. Morales-Santana is not a citizen.  He, or his father, has in a very real sense been denied the equal protection of the laws, and nothing about the Court’s decision changes this.

The difficulty is that true leveling down was not feasible in Morales-Santana as a matter of practicality or justice.  The Court could not reasonably have declared that every person who gained U.S. citizenship under §309(c), or even every person who did so after Morales-Santana himself was born, was no longer a citizen.  The U.S. citizenship of such people has already engendered truly immense reliance interests in many cases, and taking it away, after those people have structured their lives for decades based on the knowledge that they are U.S. citizens, would be a travesty.  The resulting chaos and disruption would be horrific.  This is presumably why the Court declared that its revision of the statute would operate only prospectively.  As a result, however, Mr. Morales-Santana, or perhaps more precisely his father, continues to suffer from gender-based discrimination relative to children born to unmarried women before 2017 and their mothers.   Other similarly-situated people continue to suffer from this gender-based discrimination as well.

A more subtle problem is that it is not completely clear when, exactly, the new rule displacing INA §309(c) is supposed to take effect.  Does it apply to all children born to unmarried women after June 12, 2017?  To all children born after the precise time that day that the Supreme Court announced its decision from the bench and handed out copies of the slip opinion to the press, if that time was even tracked by the Court or any other government agency?  (There is precedent for looking to time of birth to determine whether citizenship has been acquired: see Duarte-Ceri v. Holder, 630 F.3d 83 (2d Cir. 2010).)  To all children born after the Supreme Court issues its mandate in the case, which will occur after the disposition of any timely-filed petition for rehearing?  To all children born after the final version of the opinion is published in the U.S. Reports?

Also, whenever the new rule takes effect, how exactly are pregnant unwed U.S. citizens supposed to learn of it?  The statute itself still contains INA §309(c).  The State Department’s Foreign Affairs Manual (FAM), specifically 7 FAM 1133.4-3, still describes it as applicable.  Anyone who has not themselves been reading Supreme Court slip opinions, and is not being advised by a lawyer who has done so, will not know that the rule has changed.  This is significant because a pregnant U.S. citizen might in many cases have the option of traveling to the United States to give birth, making her child a U.S. citizen under INA §301(a) and Section 1 of the Fourteenth Amendment to the U.S. Constitution.  One who relies on the statute to say what it means, or even checks the FAM or speaks to a consular officer who checks the FAM, will not know of the necessity of giving birth in the United States, and may give up the opportunity to bestow U.S. citizenship on her child because she is unaware that such citizenship will not pass automatically.

The Court justified its choice of remedy in Morales-Santana partly by indicating that, if §309(c) were extended to unmarried fathers, that would still leave possibly unconstitutional discrimination, in that instance against all married parents as compared to all unmarried parents.  But there would be a relatively straightforward solution to that problem: the Court could remedy that unconstitutional discrimination by holding §309(c) to be an option available to all parents, married or unmarried, unless and until the statute were changed by Congress.  Going forward, Congress would still be free to choose a different requirement applicable to all genders and all marital statuses.

As this author has previously explained, the text of INA §301 and §309 and the administrative interpretations of those statutes that existed before the Supreme Court’s decision give rise to many potential serious anomalies.  There is a good argument to be made that the text should be revised, going forward, to fix these anomalies.  The Supreme Court’s choice of judicial alteration to the statute in the interim, however, creates more problems than it solves.

Trump’s Tweet On “Extreme Vetting” May Have Opened the Door to a Court Challenge

The Trump administration has begun to apply extreme vetting on visa applicants, even though tourism has dropped this year. A new form, DS-5535, asks visa applicants extremely detailed questions about travels, work history and their presence on social media, as follows:

  • Travel history during the last fifteen years, including source of funding for travel;
  • Address history during the last fifteen years;
  • Employment history during the last fifteen years;
  • All passport numbers and country of issuance held by the applicant;
  • Names and dates of birth for all siblings;
  • Name and dates of birth for all children;
  • Names and dates of birth for all current and former spouses, or civil or domestic partners;
  • Social media platforms and identifiers, also known as handles, used during the last five years; and
  • Phone numbers and email addresses used during the last five years.

It is going to be extremely difficult for anyone who doesn’t keep meticulous records to accurately complete Form DS-5535. The form also warns that failing to provide the information may delay or prevent the application’s processing. It is not clear who will be subject to these additional questions. The US Department of State in its May 4, 2017 notice in the Federal Register has indicated that consular officers will ask visa applicants to complete the new form to “resolve an applicant’s identity or to vet for terrorism or other national security related visa ineligibilities when the consular officer determines that the circumstances of a visa applicant, a review of a visa application, or responses in a visa interview indicate a need for greater scrutiny.” The notice goes on to further state, “Failure to provide requested information will not necessarily result in visa denial, if the consular officer determines the applicant has provided a credible explanation why he or she cannot answer a question or provide requested supporting documentation, such that the consular officer is able to conclude that the applicant has provided adequate information to determine the applicant’s eligibility to receive the visa. The collection of social media platforms and identifiers will not be used to deny visas based on applicants’ race, religion, ethnicity, national origin, political views, gender, or sexual orientation.” Notwithstanding this assurance, it is quite likely that those who inadvertently fail to include all the information may be penalized later when applying for subsequent immigration benefits. A simple error could also create a false suspicion of fraud. The government has estimated that at least 65,000 people will be subject to the extreme vetting procedure.

As more and more visa applicants subjected to DS-5535 are likely to either face actual or constructive denials (such as where an application remains pending for an indefinite period of time), what recourse would one have? A consular officer has unbridled discretion over visa decisions. A visa applicant has no right to appeal. Courts are reluctant to review a consular officer’s decision. There may however be a sliver of an opening thanks to President Trump’s obsessive use of Twitter. Trump’s recent tweets might have provided a legal basis for challenging a visa denial under the new extreme vetting procedure, especially if a visa applicant has been denied  from one of the countries contemplated under the executive order that bans travel of nationals of six Muslim majority countries.

On June 5, 2017, following the latest terror attack in London, Trump issued a series of tweets that may have undercut his travel ban case. The first executive order banning nationals of seven Muslim majority countries was blocked because it was found to have animus against Muslims based on Trump’s campaign statements, and thus violated the Establishment Clause of the First Amendment of the US Constitution. The Trump administration subsequently issued the current executive order to overcome the infirmities in the first one, but even that was blocked. The Fourth Circuit’s decision in International Refugee Assistance Project v. Trump upholding the preliminary injunction against the second travel ban stated that even this ban “in context drips with religious intolerance, animus, and discrimination.”

The administration has asked the Supreme Court to remove the block on the ban. The key issue on appeal is whether the second version is merely a watered-down version of the first ban. If that is so, then the second version is no different from the first version, which was found infirm as it displayed an animus towards one religion, namely. Trump did not help his case when he actually admitted that the second travel ban is a watered-down version of the first ban:

The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.”

David Isaacson has astutely commented  that  the usage of the term “politically correct” at “Trump’s end of the political spectrum” implies that “it is unnecessarily or inappropriately tailored to avoid speaking of a minority group in a way that liberals would consider offensive.” In other words, this is a dog whistle to Trump’s base that the watered-down more “politically correct” version demonstrates the same animus against Muslims like the first one. There is also growing commentary that agrees that Trump’s tweets may have undercut his case in favor of the travel ban. Here are other damaging tweets that were part of Trump’s tweet storm on the travel ban on June 5:

The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court – & seek much tougher version!

and

People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!

Later in the evening on June 5, Trump tweeted this:

That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!

It is thus no surprise that Neal Katyal, the lawyer who argued for the plaintiffs in Hawaii v. Trump in the 9th Circuit, tweeted, “Its kinda odd to have the defendant in Hawaii v. Trump acting as our co-counsel. We don’t need the help but will take it!” Even George Conway, the husband of Trump’s adviser Kellyanne Conway, who took himself out of the running to lead the Justice Department’s Civil Division tweeted: “These tweets may make some ppl feel better, but they certainly won’t help OSG get 5 votes in SCOTUS, which is what actually matters. Sad,” he wrote, using abbreviations or Office of Solicitor General and the Supreme Court.”

There is one tweet of Trump as part of the June 5 tweet storm that did not get noticed as much as the others, which potentially opens the door for one who may wish to seek judicial review over a visa denial under the new extreme vetting procedures:

In any event we are EXTREME VETTING people coming into the U.S. in order to help keep our country safe. The courts are slow and political!

This tweet can be interpreted to mean that “EXTREME VETTING”, capitalized by Trump, is in effect a substitute for the travel ban, which the courts have blocked. If DS-5535 is used to wholesale deny visa applicants from Muslim countries in the executive order entry into the United States, then Trump’s animus against Muslims will also be evident in Form DS-5535. On its face, the government has every right to apply extreme vetting procedures on travelers to the United States and it would be difficult to overturn a consular denial as a result. However, as a result of Trump’s tweet implying that he has deployed extreme vetting as a substitute for the blocked travel ban, it may have created an opening for challenging the procedure.

Courts have continuously applied the “facially legitimate and bona fide” test of Kliendienst v. Mandel to challenges to individual visa denials. Justice Kennedy’s concurring opinion in Kerry v. Din affirms this standard. Although Mandel sets a high bar to plaintiffs, the Fourth Circuit’s majority opinion in IRAP v. Trump emphasized that the government’s action must both be facially legitimate as well as be bona fide. The government’s action, such as with the executive order banning nationals from six Muslim majority countries in the name of national security may have been facially legitimate, but may not have been bona fide as the President used it as a cover to fulfill his promise to ban Muslims from the United States. This constituted bad faith, according to the majority opinion, and thus the executive order was not bona fide. Where the good faith has “seriously been called into question,” the court concluded it should be allowed to “look behind the stated reason for the challenged action.” The court used the test in Lemon v. Kurtzman to establish that the travel ban violated the Establishment Clause of the US Constitution by disfavoring Muslims. Relying on statements that President Trump made both during his campaign and after he became President, the travel ban was in effect a legal attempt to effectuate Trump’s promised Muslim ban rather than advance national security. The Fourth Circuit opinion broke new ground by challenging the long-held notion that the courts must always defer to the government on national security concerns, especially when the government acts in bad faith.

Trump’s recent tweets seem to suggest that the new travel ban, as a watered down and “politically correct” version of the original travel ban, was intended to fulfill his campaign promise of banning Muslims from the United States. Thus, one can infer that even the second ban was issued in bad faith, which the Supreme Court will soon review. The same could be said about Trump’s tweet on extreme vetting, as it appears to be a substitute for the travel ban, which was found to have been done in bad faith. If there is pattern of nationals from the blocked countries in the travel ban being denied visas under the extreme vetting procedures pursuant to DS-5535, applicants could potentially challenge such denials as being done in bad faith. As suggested in my prior blog, IRAP v. Trump provides a basis to challenge visa refusals if they are done in bad faith even beyond the travel ban. One can see this happening if applicants from the countries cited in the travel bans are routinely refused admission as a pretext for blocking Muslims. Admittedly, a challenge of this sort would be difficult, and the plaintiff would also need to assert standing. Standing would be easier to assert, though, when there is a constitutional claim, especially if extreme vetting like the travel ban violates the Establishment Clause, and when cases are brought by US citizens or when the interests of US citizens may be jeopardized as a result of the visa refusal.

At the time of going to press, the Ninth Circuit also issued a decision in Hawaii v. Trump that upholds the block of the lower district court, but on statutory grounds. The Ninth Circuit did not even need to get into the constitutional argument on whether the executive order displayed animus towards Muslims and thus violated the Establishment Clause, and instead ruled that the executive order violates INA 212(f). By suspending the entry of 180 million nationals of the six blocked countries, the Ninth Circuit ruled that the President did not show a sufficient justification that their suspension would be “detrimental to the interests of the United States” under INA 212(f). Although the Ninth Circuit in making a statutory argument did not feel the need to analyze Trump’s tweets, footnote 14 in on page 40 of the slip opinion mentioned one of the tweets:

Indeed, the President recently confirmed his assessment that it is the “countries” that are inherently dangerous, rather than the 180 million individual nationals of those countries who are barred from entry under the President’s “travel ban.” See Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 6:20 PM), https://twitter.com/realDonaldTrump/status/871899511525961728 (“That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!”) (emphasis in original); see also Elizabeth Landers, White House: Trump’s tweets are “official statements”, CNN (June 6, 2017, 4:37 PM), http://www.cnn.com/2017/06/06/politics/trump-tweets-official-statements/ (reporting the White House Press Secretary’s confirmation that the President’s tweets are “considered official statements by the President of the United States”).

Ultimately, the Supreme Court will be the final arbiter and may either affirm the reasoning of the Fourth Circuit or the Ninth Circuit, or reverse. If the Supreme Court lifts the block, then that would end the matter and this blog may become moot. If the Supreme Court affirms the block, then Trump’s tweet on extreme vetting might still be relevant if a plaintiff decides to challenge a visa denial and especially if the Supreme Court upheld the Fourth Circuit’s constitutional argument rather than the Ninth Circuit’s statutory argument. One can see the Trump administration deploying extreme vetting with full force as a substitute to the blocked travel ban. If extreme vetting harms the image and economy of the United States by dissuading bona fide travelers form Muslim-majority countries, and does nothing to enhance national security interests, it is incumbent on those who view the United States as a great nation because of its welcoming attitude towards visitors and immigrants to find creative ways to challenge DS-5535.

The “politically correct version”: What Donald Trump’s Recent Tweet and Previous Use of the Term “Politically Correct” Tell Us About His Revised Executive Order

Donald Trump weighed in earlier today via Twitter regarding the litigation about his travel-ban executive orders, tweeting among other things that “The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.”  It is, as others have pointed out, a bit odd that Mr. Trump, to whom the Justice Department ultimately reports given his current status as President of the United States, is expressing his disagreement with them via Twitter.  These tweets also, as the media has noted, undermine the Administration’s court defenses of the ban.

One point that does not yet seem to have been made is that Mr. Trump’s reference to the current version of the travel ban being “politically correct” has special significance in light of his past usage of that term. ACLU attorney Omar Jadwat, quoted by the LA Times, did observe that the reference to political correctness undercuts the government’s arguments:

Lawyers for the government “have made a diligent effort to demonstrate that this was not about religious animus,” he said, no[r] was it an effort to fulfill Trump’s campaign pledge to enact a “Muslim ban.” But Trump’s tweets show the president’s belief that scaling back the travel order reflected “political correctness,” and not his true intent.

The New York Times, as well, has observed that “in calling the revised order ‘politically correct,’ Mr. Trump suggested that his goal was still to make distinctions based on religion.” This usage of the term “politically correct” would indeed be indicative of religious animus even if Trump had not used the term previously, but it is especially telling in context.

In the usage of those at Donald Trump’s end of the American political spectrum, to say that something is “politically correct” is generally to say that it is unnecessarily or inappropriately tailored to avoid speaking of a minority group in a way that liberals would consider offensive. Donald Trump himself has indicated this understanding of the term “politically correct” in at least one of his own past tweets, and has done so specifically in the context of Islam. As he tweeted on July 4, 2016, https://twitter.com/realdonaldtrump/status/749989709275885568 :

With Hillary and Obama, the terrorist attacks will only get worse. Politically correct fools, won’t even call it what it is – RADICAL ISLAM!

That is, to Donald Trump, it is “politically correct” to avoid using the term “RADICAL ISLAM” in reference to terrorist attacks. It would appear to follow that the revised travel ban Donald Trump criticizes for being “politically correct” has, in his view, refrained from using those terms to avoid being offensive.  His Justice Department and revised executive order will not, to use his words, “call it what it is”—and what it is, in reality, is his attempt to act against Islam.

This is, to say the least, problematic for the government’s position in the travel ban litigation. The Court of Appeals for the Fourth Circuit upheld an injunction against the ban in IRAP v. Trump on the basis that even the revised ban “in context drips with religious intolerance, animus, and discrimination.” The President’s position, as evidenced by his latest tweets read in the context of his earlier tweets, appears to be that the revised ban has not made its religious animus clear enough.