Monday, June 12, 2017

Did Morales-Santana (the person) Win or Lose in the Supreme Court?

Mark Tushnet

I've seen some comments that Morales-Santana the decision was a "good news, bad news" outcome for Morales-Santana the person. The good news is that his lawyer won the argument that the statute being challenged was unconstitutional; the bad news was that the remedy wasn't the extension of the shorter period required for citizenship to him. The effect of the Court's remedy is that Morales-Santana isn't automatically a citizen and so is subject to removal.

What follows might be way off, but my initial reaction is that that argument is incomplete, because it doesn't take account of the Court's statement that, pending a statutory revision, the "Government must ensure that the laws in question are administered in a manner free from gender-based discrimination." What could that mean? My (relatively uninformed) take is this: Where (a) the gender-based provision would have immediate legal consequences (as in triggering Morales-Santana's eligibility for removal), and (b) the law gives the government discretion in administering the law (for example, discretion to suspend removal), that discretion should be exercised in a way that would eliminate the legal effects of the gender-based discrimination. So, in short, if there's discretion to suspend Morales-Santana's removal, he should get to stay in the United States.

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