Yesterday, Morales-Santana held that an individual had been denied citizenship based on a gender-discriminatory law that violated equal protection. Yet the only practical effect appears to be that, in the future, even fewer people will obtain citizenship. That outcome has already prompted a lot of commentary, including from Howard, Ian, and Will. Here, I add two points. First, the Court’s exclusively “prospective” remedy appears not to have fully remedied the asserted discrimination, even on the Court’s theory. Second, the Court’s limited grant of relief interestingly blurs the traditional distinction between precedent and judgment.
Here’s a brief account of what happened. Various statutes govern when children born abroad are granted US citizenship. One of these laws created what I will call a “special rule,” granting citizenship to certain people after a relatively brief period of US residence. But in creating that special rule, Congress used a gender-based preference—in particular, a preference for the children of unwed US-citizen mothers. This meant that children of US-citizen fathers could not benefit from the special rule.
Enter Morales-Santana, who is a child of a US-citizen father. When the government sought to deport him, Morales-Santana claimed that he should benefit from the special rule described above. His argument was straightforward: the special rule cannot be offered exclusively to the children of US-citizen mothers, or else it would violate equal protection. To avert that violation, Morales-Santana argued, the special rule must be available to the children of children of US-citizen fathers—including Morales-Santana himself.
Now, there is a lot to say about the merits of Morales-Santana’s equal protection claim. But that is not the part of the case that I am focused on here. Rather, I am currently interested in the remedy that the Court adopted after it concluded that the special rule was unconstitutional. The remedy issue is interesting because, despite agreeing with Morales-Santana on the merits, the Court ended up agreeing that Morales-Santana lacked citizenship and could be removed.
But how could Morales-Santana lose his immigration case, even though he had been denied relief pursuant to a discriminatory law? The answer is that there are two ways of remedying discriminatory treatment. One way is to “level up” by granting better treatment to all, without engaging in discrimination. The other way is to “level down” by granting worse treatment to all, again without engaging in discrimination. Here, the Court leveled down.
The Court’s reasons for leveling down are a bit intricate and merit more scrutiny than I can offer in this post. Basically, the Court decided to imagine what Congress would have done if it had realized that the special rule engaged in forbidden gender discrimination. And the special rule was, well, special. It was an exception to a generally applicable default regime. So, absent the special rule, Congress would presumably want the default rule to apply.
But there’s one more twist. For many years, children of US-citizen mothers had benefited from the special rule. You might expect the Court to revoke those people’s citizenship. After all, they had all benefitted from what the Court has now held to be a gender-discriminatory special rule. But that step proved to be one too far. Instead, the Court held—virtually without explanation—that the leveling down would be “prospective” only.
Justices Thomas wrote separately to point out that the Court’s remedial holding seemed to moot its merits analysis. Joined by Justice Alito, Thomas suggested that the Court could simply have assumed a merits violation arguendo and then explained that the proper remedy would then be to level down. The majority’s footnoted response is interesting:
JUSTICE THOMAS, joined by JUSTICE ALITO, sees our equal protection ruling as “unnecessary,” given our remedial holding. But, “as we have repeatedly emphasized, discrimination itself . . . perpetuat[es] ‘archaic and stereotypic notions’” incompatible with the equal treat ment guaranteed by the Constitution.
While not pellucid, this passage appears to say that Thomas would have afforded Morales-Santana only incomplete relief because it would have preserved the gender-based discrimination that he complained of. By contrast, the majority afforded Morales-Santana meaningful relief by eliminating the unlawful discrimination.
At this point, it’s time to start asking some critical questions.
First off, was the majority right that it had to reach the merits in order to afford Morales-Santana adequate relief? After all, it’s unsettling to think that Morales-Santana obtained relief by preventing other people from obtaining citizenship. Ian expressed a version of this intuition, arguing: “There is not a single human being whose life will be made better because of this opinion.” Yet the idea that discrimination is inherently harmful underlies many of the Court’s doctrines. And the majority redressed that injury, thereby plausibly improving someone’s life.
Or did it? Again, the Court’s leveling-down remedy was only “prospective.” So there are many people who have obtained citizenship based on an assertedly discriminatory law, and they will continue to enjoy the benefits of that discrimination. Morales-Santana knows this. So perhaps the discrimination he suffered is ongoing, in which case he would have been denied complete relief even under the majority’s approach. If that’s right, how could the Court justify making its remedy merely prospective?
Instead of directly answering that question, the Court cited briefs filed by the United States. The relevant passages are likewise spare, but they seem to make two points. First, people who have benefitted from the special rule have engendered reliance interests—an understatement if there ever was one. Second, offering only a prospective remedy would minimize disruption and so leave Congress greater freedom to fashion its own solution.
These arguments are the kind of points made to justify a stay of the Court’s mandate or limitations on a grant of injunctive relief. But the Court did not purport to impose a stay or injunction. Rather, the Court’s analysis is merely precedent within the context of Morales-Santana’s petition for review of his removal. So the Court is blurring categories when it says its decision has a “remedy” component. In effect, the Court is viewing its reasoning as akin to a declaratory judgment that adjudicates the rights of non-parties.
What’s more, the Court itself appears to have blurred the boundary between judgments for injunctive relief and merely precedential opinions. In a kind of catch-all decretal sentence, the Court indicated that the decision below was affirmed in part, reversed in part, and remanded. As Will has pointed out, however, this disposition is surprising, for the lower court had ruled in favor of Morales-Santana’s citizenship and granted his requested relief. So, what part of the lower court’s judgment was affirmed?
The Court’s decretal language may simply have been imprecise. Or perhaps the Court wanted to affirm out of a sense of courtesy to the lower court. In a couple places, it seems that the majority opinion (authored by Justice Ginsburg) goes out of its way to be respectful of the Second Circuit panel decision, such as by pointing out that the lower court “correctly” ruled on the merits. Granting a symbolic partial affirmance might have been part of that effort.
But it seems more likely that the Court meant to affirm the lower court insofar as it had found an equal protection violation, thereby establishing a binding precedential rule. An analogy might be drawn to Camreta v. Greene, which vacated “part of the Ninth Circuit’s opinion,” thereby treating a precedential ruling as though it were a judgment. So in both its reasoning and its decretal sentence, Morales-Santana seems to have conflated its treatment of judgments and of precedent.
It’s also worth noting two other considerations that may have informed the Court’s choice of remedy, even though they weren’t discussed. First, Justice Scalia helped propound the idea that courts lack authority to extend citizenship as a remedy—a position canvassed and ultimately rejected by the Second Circuit below. Second, if the Court had made the level-down remedy retroactive, the result might have violated the constitutional rights of the people induced to rely on the government’s promise of citizenship.
With so many controversial considerations swirling around, the Court may have deliberately curtailed its reasoning, hoping to do rough justice today while enjoying wiggle room tomorrow. At that, at least, the Court likely succeeded.
Cross-posted on the Prawfsblawg SCOTUS symposium.