Sessions v. Morales-Santana, Five Years On

Abstract

The Supreme Court’s 2017 decision in Sessions v. Morales-Santana was a landmark victory for equality over congressional power. For the first time the Court invoked equal protection principles to invalidate a citizenship statute despite Congress’s near-plenary power over immigration and naturalization. The Court’s remedy disappointed Morales-Santana, however. Rather than level up by recognizing that he acquired derivative citizenship as of birth from his unwed citizen father, the Court leveled down by striking a more favorable rule granting derivative citizenship at birth to children of unwed citizen mothers. Commentators recognized that the Court’s brief opinion left many questions open and that only subsequent developments would reveal whether or how it might affect equal protection and plenary power doctrines.

This essay examines the first five years of developments. It shows that Morales-Santana has had a significant but limited impact. Courts have relied on it to level up in citizenship litigation, to adjudicate claims of post-natal citizenship, and to secure some rights of non-traditional families and family members. Nevertheless, the majority’s insistence that contemporary evaluation governs equal protection analysis has not informed the development of gender-based equal protection more broadly. Courts continue to accept older precedents and rationalizations of gender discrimination at face value. An equal protection principle strong enough to defeat congressional power in an area as important as citizenship has failed to eliminate gender discrimination in other important areas like parental rights.

The essay also analyzes constitutional issues relating to citizenship and plenary power that the majority opinion glosses over, outlines defenses against potential circumvention, and identifies areas for further development that remain despite—or perhaps because of—the majority opinion’s theoretical uncertainties. How courts will continue to apply the decision in citizenship, immigration, and other cases remains to be seen.