Tuesday, June 13, 2017

The Remedy in Morales-Santana (Again)

Mark Tushnet

At the risk of abusing readers' patience, here's another stab at explaining the remedy in Morales-Santana, provoked by Will Baude's observation that no one, including him, shares my interpretation of the judgment. As a preliminary, it's worth noting that Baude's comment has two peculiarities. (1) It doesn't even mention the sentence critical to my argument, and therefore provides no account whatever of the relation between that sentence and the judgment. (2) He offers two alternative (I think of them as fancy-schmancy) possibilities, one of which he says is inconsistent with his understanding of how federal courts work and the other of which attributes a lack of principle to the Court. But, my interpretation -- no matter who doesn't agree with it -- is consistent with how federal courts work and is principled. I would think that both of those features counted in its favor.

So, now to the truly "abusing the reader" part. Baude and others have worried over what portion of the Second Circuit's judgment was affirmed. In the Second Circuit the government contended that it was required by the statute to deny the citizenship claim. Put another way, the government's position was that it had no discretion to grant the claim. The Second Circuit's judgment can be taken to have two components. (1) It rejects the government's claim that it lacks discretion to grant the claim. (2) It holds that the government must grant the claim by acknowledging citizenship. The Supreme Court reversed component (2) of the judgment, and affirmed component (1). No doubt it's a little awkward to say that component (2) is the equivalent of saying "Every time you have discretion, you must exercise it in a specific way," but it's not incoherent. And by affirming component (1) the Court provides a legal -- principled -- basis for the interpretation I offer of the crucial sentence.

Another version: The Second Circuit reversed the BIA and remanded the case to it for proceedings consistent with the Second Circuit's opinion. The Supreme Court reversed the portion of the Second Circuit's judgment (not opinion) that directed the BIA to act consistent with the Second Circuit opinion, and affirmed the portion remanding the case to the BIA. But, what -- other than exercise whatever discretion it has -- is the BIA supposed to do on remand? If the BIA must deny the citizenship claim, the Court should have simply reversed the Second Circuit, which would have left in effect the BIA's prior denial of the citizenship claim.

One further point: The remedy the Court adopted -- the crucial sentence on how to administer the statute aside -- has been described as the "mean" remedy. I would have thought that Justice Ginsburg (or someone else who joined her opinion) would have had some hand-wringing rhetoric about how sorry they are that the law requires this unfair outcome (which really is unfair in this specific case) -- but the sentence on administering the statute makes hand-wringing unnecessary.

I eagerly await accounts of the outcome that make more sense of the two central matters on which I rely (the "affirmed in part" matter and the sentence on administering the statute to avoid gender discrimination). [But I'm getting on a plane in an hour and will be out of touch for the following eleven hours -- although, perhaps, some might say that I'm already out of touch.]

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