Monday, April 24, 2017
The Power at Stake in Maslenjak by Nancy Morawetz
Tomorrow, the Supreme Court will hear argument in Maslenjak v. United States, a case in which the government seeks extraordinary power to jail and strip citizenship from anyone based on an immaterial misstatement in a citizenship application, such as omitting mention of membership in an organization in high school. This oral argument comes at a time when Trump administration officials have made it very clear that they will pursue maximal enforcement under the powers they have. Just last week, for example, Secretary of Homeland Security John Kelly called for people to “shut up” or change the laws if they don’t like the way laws are enforced. Similarly, Attorney General Sessions has announced a policy of full use of prosecutorial power with respect to immigrants. The question before the Court – namely the breadth of laws governing prosecutions for misstatements in citizenship applications– is therefore critical. This administration has made clear that it will exercise every power it has.
Thus, it is particularly interesting to see how much the Solicitor General tries to assure the Court that the further reaches of the power it seeks will not be exercised. The amicus brief of the Immigrant Defense Project, et al (for which I served as counsel of record) show how the citizenship application, with its extremely broad and invasive questions, leaves plenty of room for immaterial misstatements. These can include items as minor as not reporting driving over the speed limit, misstating the applicant’s height and weight, or leaving out membership in an organization many years in the past. Some of these misstatements might be due to confusion, but others could well be intentional and stem from embarrassment or not wanting to disclose personal information to the interviewer.
The Solicitor General, in a rare response to amicus briefs, characterizes these examples, and others offered in a brief by Asian Americans Advancing Justice, et al, as “mistaken” and suggests that these examples could be defended on the ground that the statement was due to “forgetfulness” or is otherwise not “knowing.” But this answer totally misses the point of the power the government seeks. It is asking that it be allowed to jail people based on immaterial statements if those statements were knowing, no matter how trivial those statements might be or how unconnected to the citizenship determination. If the government gets that power, no one should be surprised to see it used.