Monday, June 12, 2017

Morales-Santana on "Entry Preferences for Aliens"

I have virtually no interest in the travel-ban litigation at all, a statement which may seem belied by this and one other post I'll be doing today or tomorrow, but I just wanted to note, as I hadn't seen it noted anywhere, that today's opinion in Sessions v. Morales-Santana has something to say about the appropriate standard of review in cases where it's alleged that some broad exclusion of aliens is unconstitutionally discriminatory.  In describing Fiallo v. Bell, the Court writes:

The 1952 Act provision at issue in Fiallo gave special immigration preferences to alien children of citizen (or lawful-permanent-resident) mothers, and to alien unwed mothers of citizen (or lawful-permanent-resident) children. 430 U.S., at 788–789, and n. 1. Unwed fathers and their children, asserting their right to equal protection, sought the same preferences. Id., at 791. Applying minimal scrutiny (rational-basis review), the Court upheld the provision, relying on Congress' “exceptionally broad power” to admit or exclude aliens. Id., at 792, 794. This case, however, involves no entry preference for aliens. MoralesSantana claims he is, and since birth has been, a U.S. citizen. Examining a claim of that order, the Court has not disclaimed, as it did in Fiallo, the application of an exacting standard of review.
Some quite tentative observations:

1.  In writing this passage, and in joining it, Justice Ginsburg and the rest of the Court (with the notable exceptions of Thomas and Alito, who concurred in the judgment, and Gorsuch, who did not participate) could not have been unaware that the travel-ban order is a sort of "entry preference [or anti-preference] for aliens," and must have had the travel-ban cases in mind.

2.  The parenthetical "rational-basis review" is intriguingly gratuitous and possibly incorrect.  Fiallo did not talk in terms of rational-basis review; nor did Mandel, on which it wholly relied.  Fiallo could easily be read to hold that gender discrimination or other sorts of normally suspect discrimination as between aliens are essentially unreviewable; it's hard to find review of any kind in Fiallo and there are many statements in it to the effect that matters of alien exclusion "are policy questions entrusted exclusively to the political branches," and that "it is not the judicial role in cases of this sort to probe and test the justifications for the legislative decision."  Perhaps most notably, in addressing an argument that the statute at issue there was based on "an overbroad and outdated stereotype" about the fathers of illegitimate children, the Court said in footnote 9 of Fiallo that complaints about invidious stereotypes where aliens were concerned "should be addressed to the Congress rather than the courts."  The Court in no way doubted that those stereotypes motivated the statute or suggested that matters might have been different were there more evidence of those stereotypes.  Footnote 4 of Fiallo is also rather remarkable in its apparent assertions of non-reviewability; there, the Court approvingly paraphrases/quotes Justice Frankfurter in Galvan v. Press as writing that "much could be said for the view that due process places some limitations on congressional power in the immigration area, were we writing on a clean slate," but that "the slate is not clean," and concludes that it is "no more inclined to reconsider" Galvan and cases like it "today than we were five years ago when we decided [Mandel]."  That is to say, due process does not even place some limitations on congressional power in the immigration area, though much could be said for such a view; it places none.

3.  It is also mildly noteworthy that Justice Ginsburg writes that Fiallo relied on Congress' power to exclude aliens. Fiallo did indeed talk in those terms; it also said that "the power to expel or exclude aliens [w]as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control" (emphasis added).  There could be some effort here to preemptively narrow Fiallo to congressional exclusions.

4.  At the same time that the Court's discussion of Fiallo might seem to ramp scrutiny up a bit from the somewhat delphic facially legitimate and bona fide standard in Mandel, it also may ratchet scrutiny down.  It's very difficult for me to see how to cohere Fiallo, as the Court described it, with the travel ban's critics' insistence that courts can leverage the bad-faith exception to Mandel into reviewing the travel ban like they would any other statute or rule in an Establishment Clause case.  In Fiallo, Congress enacted a statute that facially discriminated among aliens on the basis of gender and illegitimacy; according to the Court today, Fiallo held that those facial discriminations, motivated by gender/illegitimacy stereotypes though they may have been, should only be reviewed for rational basis because of Congress's broad power over aliens.  Proving that the travel-ban order is really a stereotype-motivated religious gerrymander in national-origin disguise, it seems to me, merely gets you to exactly where the plaintiffs in Fiallo were from the start.  

Of course, that perhaps bold statement has to be adjusted for differences between religious discrimination and gender/illegitimacy discrimination, but those seem to be differences without a distinction inasmuch as the Court was very clear today that Fiallo modulated an otherwise "exacting standard of review" into rational-basis review because Congress was making entry rules that discriminated amongst aliens.  The bad-faith exception may only apply or make sense, I want to tentatively suggest, in cases where individual consular officials give some preexisting statutory reason for excluding individual aliens that arguably has been given in bad faith, not when Congress or the President promulgate a new policy about which classes of aliens may not enter the country that allegedly or facially discriminates on some normally suspect ground.  

5.  The statement at the end of the Court's discussion of Fiallo that Fiallo doesn't apply because Morales-Santana "claims" he is a citizen is strange; as I understand the case, it was about whether Morales-Santana's claim was right, and the Court held today, for remedial reasons, that it wasn't.  What the Court says would make more sense if it said that Morales-Santana, citizen or not, is at least a lawful permanent resident and that cases that turned on Congress's plenary power to exclude aliens from entry are inapposite.  I don't think, though, that this language provides an out for plaintiffs in the travel-ban cases to say that because they claim that the people on whose behalf they're suing should be able to enter the country, cases like Fiallo and Mandel do not apply.

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