SEX DISCRIMINATION AT OUR BORDERS? THE SUPREME COURT'S NGUYEN CASE - PART II

This article is Part Two of a two-part series by Professor Dorf on the pending Supreme Court case of Nguyen v. INS. Part One of this series, which appears simultaneously, may be found in Writ, just above this article. – Ed.

Like the equal protection issue discussed in Part One, the plenary power question in Nguyen is interesting and difficult. However, neither the Court nor the parties have treated the case as including a challenge to the plenary power doctrine itself, and that is unfortunate, because the doctrine is not constitutionally warranted.

The plenary power doctrine is sweeping. As the Supreme Court stated in the 1976 case of Mathews v. Diaz: "In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens."

Among the most obvious of such rules are national and regional immigration quotas that are sharply disproportionate to those countries' populations, and thus depend on national origin as an important factor. The validity of these quotas is taken for granted, even though longstanding constitutional doctrine treats discrimination among citizens on the basis of national origin as presumptively invalid.

The government's argument for application of the plenary power doctrine in Nguyen is straightforward. The Constitution recognizes two mechanisms by which persons become citizens: those born in the United States are citizens by virtue of the Fourteenth Amendment; all other persons acquire citizenship by naturalization laws that Congress has virtually unlimited authority to fashion. Because Nguyen was not born in the United States, the government argues, his citizenship falls squarely within Congress's plenary power.

The petitioners concede that Congress was under no obligation to recognize any form of citizenship beyond what the Fourteenth Amendment requires. However, they claim that its decision whether or not to do so, and its decision whether to do so in a gender-equal manner, are outside the plenary power doctrine.

That is because, according to petitioners, transmission of citizenship from parent to children is not a matter of immigration or naturalization. For example, children born to two married U.S. citizens overseas do not have to go through any naturalization process; they are automatically citizens from the moment of birth.

More directly to the point, the provision at issue in Nguyen states that once the U.S.-citizen parent complies with the statutory requirements, the child's U.S. citizenship is automatically retroactive to birth. Again, no naturalization process occurs.

The principal difficulty with the petitioners' argument is that it turns on a distinction found nowhere in the Constitution. As far as the Fourteenth Amendment is concerned, a person who does not acquire citizenship by being born in the United States can only acquire it by naturalization. Constitutionally, it does not matter whether there is a naturalization "process" or not.

In short, jus sanguinis — the principle that citizenship automatically follows blood, in a sort of instant naturalization — is not a constitutionally significant category. Even instant naturalizations are naturalizations from a constitutional perspective.

Petitioners gamely argue that longstanding Congressional practice reflects a distinction between jus sanguinis citizenship and citizenship acquired by immigration and naturalization. Indeed, the very first Congress enacted a provision recognizing jus sanguinis citizenship for children born to U.S. citizens overseas, and such provisions have been part of U.S. law ever since. It would be historically unprecedented, the petitioners argue, to treat the citizenship of persons like Nguyen as falling within Congress's plenary power over naturalization and immigration.

Petitioners' argument may find favor with the Supreme Court. In 1998, in Miller v. Albright, the Court considered a challenge to exactly the same provision challenged in Nguyen. The result was inconclusive, but there are hopeful signs for the petitioners.

In Miller, Justices Souter, Ginsburg and Breyer indicated that, in their view, jus sanguinis citizenship falls outside the plenary power doctrine. Moreover, another two Justices — O'Connor and Kennedy — also suggested that the statute might be invalid as sex discrimination, though they did not directly address the analytically prior question of whether the plenary power doctrine applies. (Justice Stevens and Chief Justice Rehnquist thought the statute did not impermissibly rely on sex stereotypes; Justices Scalia and Thomas deemed the matter committed to Congress under the plenary power doctrine.)

Only a legal technicality may have prevented the provision at issue in Nguyen from being struck down earlier, by a 5-4 majority, in Miller. The Miller petitioner was trying to raise her father's equal protection rights for him, which Justices O'Connor and Kennedy held was legally improper; this is not a problem in Nguyen, since there Nguyen's father is a party, and is raising his own rights.

If the Justices hold to their positions in Miller, there will be a narrow 5-4 majority to invalidate the provision at issue in Nguyen. But this majority may not hold. The government now presents arguments it did not make in Miller, and the substantive views expressed there by Justices O'Connor and Kennedy were necessarily tentative. Consequently, it is difficult to predict how the case will be decided.

However Nguyen comes out, the plenary power doctrine will likely remain intact. At most, the case poses a question of where the doctrine ends and ordinary constitutional protections begin. That is unfortunate, because the doctrine is pernicious.

Nothing in the Constitution's text suggests that Congress may exercise its power over immigration and naturalization without respecting constitutional rights. Article I, § 8, clause 4 grants Congress the authority to "establish an uniform Rule of Naturalization." Those words alone might suggest Congress' power is plenary — but only until one looks at the way other constitutional powers are conferred.

The very same clause of the Constitution, using strikingly similar language, enables Congress to promulgate "uniform Laws on the subject of Bankruptcies throughout the United States." Yet no one has ever suggested that bankruptcy law is immune to challenge under the Bill of Rights.

And the same may be said of all of Congress's powers — such as the power to regulate interstate commerce, to tax, to spend, and so forth. Yet despite the parallel constitutional language, the Court grants Congress complete deference with respect to the immigration and naturalization power.

The authority usually cited for the plenary power doctrine is its historical pedigree. But the scope of Congressional power over immigration was unclear at the Founding. Federalists like Alexander Hamilton argued for the equivalent of the plenary power doctrine, on the ground that aliens were not parties to the social compact that was the Constitution. But Jeffersonians replied that the Constitution might nonetheless confer rights on non-citizens.

The plenary power doctrine was not established in American constitutional law until the late nineteenth century, when the Supreme Court affirmed Congressional policies aimed at curbing Japanese and Chinese immigration. Those decisions and the policies they upheld were at best profoundly xenophobic and alarmist, at worst openly racist. Yet they are the principal foundation for the plenary power doctrine.

Given the plenary power doctrine's lack of textual support and unseemly past, why has the Court persisted in applying it? The Justices believe that questions of immigration and naturalization are best left to the political branches because they are intertwined with foreign affairs and other matters that courts are not well positioned to decide.

This is a legitimate concern, and it justifies some measure of deference to Congress. But it does not justify the Court's complete abdication of responsibility for enforcing individual rights.

In other areas of sensitivity, such as laws governing the military, the Court has granted Congress deference, yet still enforced constitutional safeguards. Indeed, it was in the context of laws governing the military that the Court, in the 1973 case of Frontiero v. Richardson, first applied heightened judicial scrutiny to sex classifications.

At the end of the day, the Court may find that the provision at issue in Nguyen does not deny equal protection to men. The government has offered a plausible non-sexist reason for the law. However, if in the Justices' best judgment, that reason is insufficient to justify an express sex-based classification, it would be a shame if they nonetheless sided with the government because of the plenary power doctrine. A dubious doctrine launched in racism should not be used to perpetuate sexism.