Article I, Section 8, Clause 4:

[The Congress shall have Power . . . ] To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; . . .

More recently, in Sessions v. Morales-Santana, the Supreme Court in 2017 considered a legal challenge to Immigration and Nationality Act (INA) provisions that set forth the manner in which a child born abroad to a U.S. citizen parent and an alien parent could acquire citizenship.1 These provisions generally required the U.S. citizen parent to have accrued at least five years of physical presence in the United States prior to the child’s birth.2 The INA extended this rule to children born out of wedlock to a U.S. citizen parent and an alien parent.3 If a child was born abroad to an unwed U.S. citizen father and an alien mother, the father could transmit citizenship to the child if he had accrued five years of physical presence in the United States before the child’s birth.4 The INA, however, created an exception for unwed U.S. citizen mothers, who could transmit citizenship to the child so long as they had accrued just one year of physical presence in the United States.5

Luis Ramon Morales-Santana was born in the Dominican Republic to an unwed U.S. citizen father and an alien mother, but he could not acquire citizenship from his father because his father had not yet accrued five years of physical presence in the United States at the time of Morales-Santana’s birth.6 Noting that the INA allowed unwed U.S. citizen mothers to transmit citizenship so long as the mother had accrued one year of physical presence, Morales-Santana argued that the gender-based distinction between unwed U.S. citizen fathers and mothers violated his U.S. citizen father’s right to equal protection.7

The Supreme Court agreed, ruling that the government failed to show an “exceedingly persuasive justification” for the gender-based distinction between unwed mothers and fathers.8 According to the Court, the distinction was based on “overbroad generalizations” about the respective roles of husbands and wives.9 Specifically, the Court observed, the statute rested on the long-held notion that, for unmarried parents, the mother is considered to be the child’s natural and sole guardian because she is more qualified than the father to take responsibility for the child.10 The Court rejected the government’s contentions that the gender-based distinction ensured that children born abroad have sufficiently strong connections to the United States and reduced the risk of statelessness (i.e., lacking a country of citizenship) for foreign-born children.11

The Supreme Court thus held that the one-year physical presence provision for unwed U.S. citizen mothers was unconstitutional, and invited Congress to “settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender.” 12 In the meantime, the Court determined, the standard five-year physical presence requirement should apply to both unwed U.S. citizen mothers and fathers of children born abroad.13

The Supreme Court’s Morales-Santana decision shows that, while Congress has broad power over naturalization, the terms and conditions that Congress sets forth for obtaining citizenship may be subject to constraints imposed elsewhere in the Constitution.

Footnotes

1

No. 15-1191, slip op. at 1 (U.S. June 12, 2017).

2

8 U.S.C. § 1401(g).

3

Id. § 1409(a).

4

Id. §§ 1401(g), 1409(a).

5

Id. § 1409(c).

6

Morales-Santana, slip op. at 5–6.

7

Id. at 6.

8

Id. at 9, 22–23.

9

Id. at 7, 11–12.

10

Id. at 10–12.

11

Id. at 15–23.

12

Id. at 27–28.

13

Id. at 28. By contrast, in Nguyen v. INS, the Court in 2001 rejected an equal protection challenge to a separate INA provision that requires unwed U.S. citizen fathers of children born abroad to establish paternity in order to transmit their U.S citizenship to those children, without imposing similar requirements on unwed U.S. citizen mothers. Nguyen v. INS, 533 U.S. 53, 58–59 (2001). Unlike in Morales-Santana, the Court determined that the gender distinction served two important governmental objectives: (1) assuring that a biological parent-child relationship exists (a fact, the Court observed, that is already verifiable from the birth itself in the case of a mother), and (2) ensuring that the child and the U.S. citizen parent have an opportunity to develop a real, meaningful relationship (which, in the Court’s view, “inheres in the very event of birth” in the case of a U.S. citizen mother). Id. at 62, 64–65. In Morales-Santana, the Court distinguished Nguyen, noting that, unlike the paternity requirement at issue in that case, “the physical-presence requirements now before us relate solely to the duration of the parent’s prebirth residency in the United States, not the parent’s filial tie to the child. As the Court of Appeals observed in this case, a man needs no more time in the United States than a woman ‘in order to have assimilated citizenship-related values to transmit to [his] child.’ And unlike Nguyen's parental-acknowledgement requirement, § 1409(a)'s age-calibrated physical-presence requirements cannot fairly be described as ‘minimal.’” Morales-Santana, slip op. at 16 (quoting Nguyen, 533 U.S. at 70; Morales-Santana v. Lynch, 804 F.3d 521, 531 (2d Cir. 2015), rev’d in part sub. nom. Sessions v. Morales-Santana, No. 15-1191 (U.S. June 12, 2017). The Supreme Court had also considered the constitutionality of the gender-based distinction at issue in Nguyen in Miller v. Albright. 523 U.S. 420 (1998). There, however, a majority of the Court did not decide that question. Although four justices rejected the challenge to the gender-based distinction, only two reached the merits, ruling that there was no equal protection violation. Id. at 445. In a separate opinion, two other justices concluded that the Court could not confer citizenship as a remedy even if the statute violated equal protection. Id. at 459. In another opinion, three justices argued there was an equal protection violation. Id. at 481–82. Additionally, in another separate opinion, two justices determined that the petitioner in the case lacked standing to raise the equal protection rights of his father. Id. at 452.