Instant Analysis of Flores-Villar v. United States
This case is likely going to be affirmed, and if I had to predict, the Court will dance around the underlying constitutional issues, and base the holding on standing, lack of redressabilty/remedy.
Argument of the Petitioner
Justice Breyer provided a very concise summary of the case:
A child is born abroad. One parent is American; the other is foreign. If the two are married, that child is American only if the father or the mother — one or the other — has lived in the United States for now at least 2 years. It used to be more. Okay? Now it’s 5 years after the age of 16.
Now suppose they are not married, and suppose the American is the father. Same rule.
Now suppose they are not married and the American is the mother. Now it’s not 5 years or 2 years; you only have to have lived here for one year.
Justice Scalia and Justice Ginsburg sparred a bit on stereotypes based on gender.
JUSTICE SCALIA: What separates a stereotype from a reality? Do you say it is not true that if there is a legitimate — illegitimate child, it is much more likely that the woman will end up caring for it than that the father would?
MR. HUBACHEK: What I was saying –
JUSTICE SCALIA: That’s not true?
MR. HUBACHEK: I think it is more likely, but I think that empirical evidence has not carried the day in gender discrimination cases.
JUSTICE GINSBURG: In all cases, it is true in general, but there are people who don’t fit the mold. So a stereotype is true for maybe the majority of cases. It just means that you say: This is the way women are, this is the way men are.
Justice Ginsburg later asked whether this case presented facts where unmarried women were treated more favorably.
JUSTICE GINSBURG: Mr. Hubachek, how do you deal with the argument that, really, this is a classification where the unmarried woman is being favored, because the unmarried father is being bracketed with the married couple? So it’s kind of like Matthews v. Heckler: The woman is getting a special favor and the unwed father is treated like most people who married — couples who have children.
MR. HUBACHEK: This is not a case where Congress was seeking to remedy any sort of past discrimination against women, as was the case, say, in Schlesinger v. Ballard. There was no discrimination against women. Up until very shortly before this
statute was passed, it was clear under the State Department practices that the non-marital children of women did get women’s citizenship, and it was also true as to men. So there was no discrimination that was being remedied in that situation.
JUSTICE SOTOMAYOR: But that doesn’t answer, I don’t think, Justice Ginsberg’s question, which is: This appears to be an exception to a generalized non-gender based requirement. Couples, male or female, and fathers, unmarried fathers, are subject to five years. Only unmarried mothers get the largesse of one year. Why isn’t — why shouldn’t everybody just be put to the broader category rather than extending a largesse to a greater number of people?
Justice Kennedy outright asked the petitioner whether Congress should receive less deference when making determinations of who can be a national than when determining who should be admitted as an alien.
JUSTICE KENNEDY: Is — is this your — are you taking this in the direction of an argument that Congress gets less deference in determining nationality than it does with admission to aliens?
MR. HUBACHEK: What I’m saying, Your Honor, is that we are talking about the ability of a United States citizen, Petitioner’s father, to transmit
citizenship, and that that is a traditional interest. Citizenship is extremely important and it’s a tradition that citizens have been able to do for years.
So yes, constitutional limitations should apply when the — when Congress is drawing distinctions between men and women –
JUSTICE KENNEDY: But you — you want us to write an opinion that says Congress has less deference when it considering — when it determines who should be a national of this country than it — than when it determines who should be admitted as an alien?
There was some debate over the remedy. Justice Sotomayor seemed to want to increase the standard for everyone to five years:
JUSTICE SOTOMAYOR: So doesn’t the 5-year residency requirement address that? If we apply it generally, wouldn’t the 5-year residency requirement honor Congress’s concern about there being a substantial tie to the States?
Justice Breyer wanted to ratchet down the standard for everyone to two years.
Then why isn’t the remedy, say: Okay, whether it is the father or the mother, the general rule applies. They have to have lived in the United States for 5 years or for 2 years? Now 2 years.
Chief Justice Roberts, paraphrasing his admonition from Parents Involved that the way to end discrimination is to end discrimination, notes:
CHIEF JUSTICE ROBERTS: No, he would have a remedy. The remedy for an equal protection violation is to treat everybody the same. You can do that either by lowering the people who are given a benefit or by increasing the people who aren’t. So he has a remedy.
His objection is, we’re not being — my father and my mother are not being treated the same. That’s all of the relief he is entitled to.
Justice Ginsburg advances the discussion on the equal protection clause:
JUSTICE GINSBURG: Mr. Hubachek, I think the Chief asked you: If it’s an equal protection violation, then the Court just says it violates equal protection, but whether it goes up or down, the Court has to give a temporary solution, because the legislature can’t be convened on the spot. And the Court actually did go through that exercise, extension versus invalidation, most conspicuously in Califano — Westcott, in the
Westcott case. It says, yes, that’s what we have been doing in all these cases.
In Sarah Frontiero’s case [which RBG argued], we didn’t say: You’ve been discriminated against; Congress, you fix it. We said: You get the quarters’ allowance that up until now has been available only in male officers. And in Wiesenthal, the father got the same child and care benefits as the mother. So the Court was making a decision for extension; it recognized it had to do that.
Justice Scalia argued that this case boils down to the Petitioner’s request that the Court determines that Flores-Villar is a United States Citizen
JUSTICE SCALIA: Mr. Hubacheck, you are asking, I think, that the Court pronounce your client to be a United States citizen. Isn’t that the only pronouncement from — form the Court that is going to do your client any good?
JUSTICE GINSBURG: That he is a United States citizen.
JUSTICE SCALIA: That he is, not that -that he is. That he is. Do you have any other case where a Court has conferred citizenship on someone who, under the statutes as written, does not have it?
MR. HUBACHEK: Well, that was one of the issues that was debated, of course, in the Nguyen and Miller cases, and the Court has not said that yet but it can in this case.
JUSTICE SCALIA: Never done.
Justice Kennedy likewise showed hesitancy towards the extreme remedy Petitioner sought:
JUSTICE KENNEDY: But any of — of the remedies that you are discussing with Justice Scalia involves this Court in a highly intrusive exercise of the congressional power.
Let me just ask you this as an analytic matter, or as matter of logical priorities. We usually talk about substance first, remedy second. Do you think it’s permissible, logically, for us to say that because the remedies here are so intrusive, that bears on our choice of whether we or not we use intermediate or rational basis scrutiny, and because the remedies are so difficult, we are going to use rational basis scrutiny? Is that a logical way to proceed?
Justice Ginsburg also showed some hesitancy about the remedy, and whether the Court was capable of fashioning such relief:
Argument for respondent
Justice Sotomayor inquired about the appropriate standard of scrutiny, challenging whether rational basis scrutiny applies.
JUSTICE SOTOMAYOR: Intermediate scrutiny and — is not without some deference.
MR. KNEEDLER: Excuse me.
JUSTICE SOTOMAYOR: Unless we apply strict scrutiny, which no one is arguing for, the question is, is it rational basis deference or is it some intermediate scrutiny, correct?
MR. KNEEDLER: Yes. And we believe that under this Court’s decisions, particularly in Fiallo v. Bell and the cases discussed in that case, that it should be rational basis for
Justice Sotomayor inquires if the test from Fiallo v. Bell employs the so-called rational basis “plus” test, as the Court employed in Cleburne and Romer.
MR. KNEEDLER: Fiallo v. Bell for — and the cases underlying it and we also think –
JUSTICE SOTOMAYOR: Is that the rational basis plus test you are talking about?
MR. KNEEDLER: You could call it that or you could call it a facially legitimate –
JUSTICE SOTOMAYOR: So now we’re going to just continue sort of tweaking the definitions and creating more variations on our review standard?
Breyer asks the right question, and notes that by applying rational basis scrutiny here, the Court is applying a weaker standard than other gender discrimination cases (intermediate scrutiny), and in racial discrimination cases (strict scrutiny).
JUSTICE BREYER: I understand that, but what
you are doing is applying a lesser standard to gender discrimination than is ordinarily applied to gender discrimination. Now, is there any reason to do that? think that was the thrust of the question.
JUSTICE BREYER: If it’s the government’s
position you do, does the same thing apply to racial discrimination? Do you also apply a lesser standard to racial discrimination?
MR. KNEEDLER: I think the facially legitimate standard in Fiallo v. Bell would render a reliance on race.
JUSTICE BREYER: This is suddenly is cutting a big hole in the Fourteenth Amendment.
Chief Justice Roberts asks the same question Justice Scalia previously asked regarding the desired remedy—conferring citizenship.
CHIEF JUSTICE ROBERTS: Counsel, what if -if the Court were to determine that this does violate the Equal Protection Clause, and the court were also to determine that this is not a case that should be the
first one in history in which it grants naturalization, what do you think the Court ought to do?
This case may simply be decided based on the inability of the Court to provide the requested relief.
JUSTICE SCALIA: We are — we aren’t
granting relief that doesn’t provide relief.
MR. KNEEDLER: I suppose — I suppose the Court could — could decide that at the outset, that it would not be appropriate to grant that relief and not go — and not go any further.
CHIEF JUSTICE ROBERTS: The reason it doesn’t grant that relief is somewhat unusual in this case. It only doesn’t grant him relief because of the third-party standing. He doesn’t care whether he’s treated equally or not; he just wants to be — claim the benefit of citizenship.
The person where he would get relief is if it were the father, because the relief that he is entitled to is to be treated equally. That’s it.
The relief this person is asking for is not to be deported. And so the problem of the relief being granted is really complicated by the fact that it’s a case of third-party standing.
CHIEF JUSTICE ROBERTS: Counsel, if we determine that the only remedy we can impose is to equalize up — in other words, add to the burden on the mother rather than relieving the father of it, do you have authority for the proposition that we can address that issue hypothetically? In other words, without making a decision on the equal protection question on the merits?
MR. KNEEDLER: Um –
CHIEF JUSTICE ROBERTS: In other words, look ahead and if you say, look, the only remedy that we are going to be able to give this person is a remedy that isn’t going to benefit him regardless of how the merits are decided, therefore we don’t reach the merits.
Justice Scalia seemed willing to kick this case out on standing grounds.
JUSTICE SCALIA: Well, that would be in effect saying that we have no jurisdiction, because there is no standing. Because there — there is no remediation that the Court can make.
Justice Ginsburg also explores whether stereotypes were the motivating influence for this law.
JUSTICE GINSBURG: And you said something about — this has nothing to do with stereotypes, this is the way the law was? But wasn’t the law shaped because of the vision of the world of being divided into married couples, where the father is what counted, and unwed mothers, where she was — they say both father and mother, because the law didn’t regard him as having any kind of obligation?
In a curious string of hypotheticals, Justice Breyer asked the United States to think of a case “where the Court did go into a long exegesis about the law, including constitutional law, and then says at the end, well, but you are not entitled to memory — to a remedy because of some other” factor. Mr. Kneedler could not think of such a case. I think he may have been referring to Marbury v. Madison, though who knows.