Revisiting Flores-Villar: Collins and Kerber

As we contemplate the Court's last term, one of the more cryptic cases is Flores-Villar.  The Court's per curiam decision is one of those unsatisfying conclusions: "The judgment is affirmed by an equally divided Court. JUSTICE KAGAN took no part in the consideration or decision of this case."

The Ninth Circuit opinion had upheld the federal statutory scheme which requires a citizen father to have resided in the United States for at least five years after his fourteenth birthday to confer citizenship on his child, while a citizen mother had to reside in the United States for a continuous period of only one year prior to the child’s birth to pass on citizenship. In the case of Flores-Villar, INS denied a petition for citizenship on the basis that because the citizen father was 16 years old at the time of the child’s birth and it was “physically impossible” for the father to have the required physical presence after the age of 14 in order to comply with the statute.

In a recent speech, Justice Ginsburg alluded to Flores-Villar as one "only two of the 78 argued cases" last term that "ended in an even division" possible because of Kagan's recusal. (The other case, also resulting an affirmance of the Ninth Circuit, was Costco v. Omega, involving a copyright issue).

Kristin Collins and  Linda K. Kerber (pictured right and the author of the wonderful book, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship), have an interesting discussion of Flores-Villar in Dissent Magazine.

Collins and Kerber observe:

In our own political moment, these words—citizenship, naturalization, alien—are highly charged and often misused. That they were so slippery in the Court’s deliberations in Flores-Villar may be a sign of how slippery they have become in public conversation. No one in the courtroom that day could have been unaware that the birthright citizenship clause of the Fourteenth Amendment—one of the key bulwarks of American liberty, enacted following the Civil War to make sure that southern states recognized African Americans as citizens—is being energetically attacked in legislatures throughout the nation. The attack is linked to suspicion of undocumented migrants, stereotypically visualized as pregnant women entering from Mexico to take advantage of the fact that their “anchor babies” would be citizens. In Flores-Villar, another gender-based stereotype survived: the unmarried father who plays no role in his child’s upbringing. But, in reality, neither of these stereotypical parents was present. Instead, we had an American father who brought his newborn son home to the United States to raise him there. The important differences between stereotypes and real people, and between immigration and citizenship, seem to have blurred for half of the Court.

They also predict that Flores-Villar is not the last the Court will see of this issue:

Three times in thirteen years the Supreme Court has heard arguments on the question of whether mothers and fathers may be treated differently in determining whether their children are American citizens. Given the equivocal result in Flores-Villar and the importance of what is at stake, there will no doubt be a fourth time. We must now wait patiently to see what a full Court—one on which Justice Kagan need not recuse herself—might do.

RR