The Supreme Court just made our ugly, messed up immigration law even uglier


The holding of Morales-Santana is that a federal citizenship law that gives preferential treatment to the children of unwed U.S. citizen mothers — and only to unwed mothers, not to unwed fathers — is unconstitutional. This is a natural conclusion from the Court’s previous decisions holding that gender discrimination must be viewed with skepticism.

But the practical consequence of Monday’s decision in Morales-Santana is that fewer children of U.S. citizens will themselves gain citizenship, and that more people will be subject to deportation. It also means that the individual at the heart of this case, Luis Ramón Morales-Santana, is now set to be deported to a nation he has not lived in since 1975.


When a litigant claims that they have been denied their right to equality, Ginsburg explains, “the appropriate remedy is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class.” Normally, the Court prefers the later to the former. But this is an unusual case.

Unlike most equality suits, Morales-Santana involves a law that applies a relatively harsh rule in nearly all cases, and a more lenient rule in relatively few cases. Congress clearly intended the 10-year rule to be, well, the rule, and the 1-year rule to be the exception.

Under these unusual circumstances, the Court concludes, the proper course of action is to apply the harsher rule universally, rather than rewriting the law to apply the more lenient rule more broadly. That’s bad news for Morales-Santana, as it is bad news for child born abroad to unmarried American mothers for the foreseeable future.

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