Thursday, July 9, 2015
Ruthann Robson on the Constitutional Law Professors blog analyzes an important recent court of appeals decision invalidating a provision of the immigration laws that relies on gender stereotypes in bestowing derivative citizenship. In its opinion in Morales-Santana v. Lynch, the U.S. Court of Appeals for the Second Circuit held that the differential requirements regarding U.S. presence for unwed fathers and unwed mothers to transmit citizenship to their child violated equal protection. It creates a conflict in the circuits and sets up another possible trip to the United States Supreme Court on the issue, the last one having resulted in a 4-4 split.
The Ninth Circuit has reached a contrary conclusion. Stay tuned to see whether this case ends up in the Supreme Court. Could it be the case in which the Court addresses the continuing vitality of the plenary power doctrine, which historically has immunized the substantive provisions of the immigration and nationality laws from constitutional scrutiny?