Argument recap: possible remedies in citizenship-transmission case

By Anna Christensen
on Nov 12, 2010 at 10:15 am

On Wednesday, the Court heard oral argument in Flores-Villar v. United States, a dispute over the constitutionality of a statute that imposes more stringent residency requirements on unmarried U.S.-citizen fathers who wish to pass U.S. citizenship on to their children than on their female counterparts.  At the argument, the Justices focused on the level of scrutiny that should be used to review such a requirement, as well as on the kind of remedy that Flores-Villar could obtain.

Steven Hubachek, arguing on behalf of the petitioner, began by asking the Court to distinguish his client’s case from the one at issue in Nguyen v. INS:  in Nguyen, Mr. Hubachek argued, the disparate requirements derived from biological distinctions between men and women., while the residency requirements at issue here have no biological basis.  Justice Scalia, however, countered by asking him whether the residency requirements were actually based on the assumption that women, rather than men, would care for children.

After a lengthy discussion of how citizenship was historically transmitted that was aimed at refuting the government’s contention that the statute was designed to avoid the problem of stateless children, the argument then turned to what remedies might be available if the Court were to hold that the statute was unconstitional.  Several Justices, including Justices Ginsburg and Sotomayor, asked Mr. Hubachek whether, instead of discriminating against unmarried fathers, the case in fact favored unmarried mothers over unmarried fathers and married couples – constituting, in Justice Sotomayor’s words, “an exception to a generalized non-gender based requirement.”

When Mr. Hubachek sought to shift the discussion slightly, arguing that the statute merited less deference as an appropriate exercise of Congress’s plenary power because it involved who could become a citizen rather than immigration, he drew a question from a somewhat incredulous Justice Kennedy, who asked:  “[Y]ou want us to write an opinion that says Congress has less deference when . . . it determines who should be a national of this counry than . . . when it determines who should be admitted as an alien.”  If anything, Justice Kennedy observed, “[i]t seems to be that it ought to be just the other way around.”

The discussion then returned to the question of a remedy, and specifically whether the remedy should extend rights to the foreign-born children of U.S.-citizen fathers or instead limit the rights of the foreign-born children of U.S.-citizen mothers.  Although Justice Ginsburg – who argued several prominent gender-discrimination cases – expressed support for the idea of extending remedies to the children of U.S.-citizen fathers, other Justices appeared skeptical.  Justice Scalia emphasized that there was no other case in which a court had done what Hubachek was asking it to do:  “pronounce your client to be a U.S. citizen.”  And Justice Kennedy mused whether the “intrusive” nature of the necessary remedies in this case should influence whether the Court applied intermediate or rational basis scrutiny to the statute.

Arguing on behalf of the United States, Deputy Solicitor General Edwin Kneedler quickly met questions from Justice Sotomayor regarding what kind of scrutiny was appropriate for the residency requirement.  Mr. Kneedler argued that, based on the Court’s precedent, the requirement should be subject to rational-basis review, and that the Court should determine whether Congress’s reasoning was “facially legitimate and bona fide.” This case met that standard, he argued, because Congress had relied an examination of a prospective citizen’s likely connection to the United States.   Justice Breyer, however, asked why the government would apply a lower standard of review to the statute than is normally applied in cases involving gender discrimination.

Chief Justice Roberts then again turned to the question of an appropriate remedy for the alleged gender discrimination.  From the way that the Chief Justice framed his question, it seemed unlikely that he too would vote to provide Flores-Villar with a remedy that would result in his obtaining citizenship:  the Chief Justice based his question on the assumption that “if the Court were to determine that this does violate the Equal Protection Clause, and the Court were also to determine that this is not a case that should be the first one in history in which it grants naturalization.”  Mr. Kneedler responded that even if the residency requirement were unconstitutional, the proper remedy would be to invalidate the less stringent residency requirement imposed on umarried U.S.-citizen mothers — a proposal which, Justice Scalia noted, would not actually provide Flores-Villar with relief.  Mr. Kneedler’s proposed remedy sparked a debate over whether the Court should “equalize up” – increasing the residency requirement on unwed citizen mothers to equal that imposed on unwed citizen fathers – or “equalize down,” reducing the burden on fathers to equal the one-year requirement imposed on mothers.