Skeptical Scrutiny Of Plenary Power: Judicial and Executive Branch Decision Making in Miller v Albright

In 1996, just a few months after the United States successfully urged the Supreme Court in United States v. Virginia to invalidate as sex-discriminatory the male-only admissions policy at the Virginia Military Institute, the District of Columbia Circuit in Miller v. Albright upheld a federal law that used an express, sex-based distinction. Section 309(a) of the Immigration and Nationality Act (INA) makes it harder for male U.S. citizens than for female citizens to convey their citizenship to their children if those children were born abroad out of wedlock and the other parent was not a U.S. citizen. Notwithstanding the United States\u27 position in Virginia that sex-based classifications are virtually always unconstitutional, the government defended Section 309(a) in the Supreme Court. As the government saw it, Miller involved a claim by an alien abroad, so the Constitution did not apply or, at most, the Court should review the claim with extraordinary deference to the political branches. If deferential review applied, rather than Virginia\u27s skeptical scrutiny, the government believed that the Court should uphold the statute. When review was granted, the case seemed to present an opportunity for the Court to revisit the larger issue it had addressed two decades earlier in Fiallo v Bell: how to reconcile heightened, “skeptical” scrutiny of sex-based classifications with diminished scrutiny of immigration and naturalization measures in a case that seemed to call for both. The Court in Fiallo had sustained a sex-based classification in an INA provision closely analogous to Section 309(a), but dealing with eligibility for permanent resident status rather than citizenship. Fiallo treated Congress\u27s plenary power over immigration as categorically trumping the otherwise heightened level of scrutiny applicable to sex-based classifications. But virtually the entire body of modern constitutional law on sex discrimination developed after Fiallo. The Court decided Fiallo in 1977, close on the heels of its 1976 decision in Craig v Boren, the first case in which it applied intermediate constitutional scrutiny to a sex-based classification. The two ensuing decades of sex discrimination decisions strengthened and clarified the equal protection standard. The court of appeals in Miller had upheld the statute under Fiallo over a dissent arguing that the Supreme Court should reconsider Fiallo in light of the intervening sex discrimination jurisprudence. The government\u27s brief in opposition to certiorari characterized Miller as squarely governed by Fiallo, so the Supreme Court\u27s decision to grant review so soon after Virginia suggested that Fiallo might be headed for the dustbin. Instead, the Court issued a decision on nonjusticiability grounds that was so fractured and narrow as to seem almost meaningless. But there is, on closer examination, much that is surprising and significant about Miller. The case provides an opportunity for re-examining the nature and justifications for the plenary power doctrine. The authors begin by analyzing Section 309(a) and explaining why they believe those Justices who concluded that the statute unconstitutionally discriminates based on sex are clearly right. They argue that judicial deference under the plenary power doctrine is an institutionally rather than substantively based doctrine. The authors then look at Miller\u27s implications for the future of the plenary power doctrine. Finally, they discuss the implications for government lawyers of our sex discrimination and plenary power analyses. That discussion has two parts: First, the authors argue that the underenforced-norms reading of the plenary power cases suggests that the political branches should not use deferential, rational-basis review in conducting their own constitutional review of immigration, nationality, or citizenship measures, but should apply full-fledged constitutional norms. Second, they argue that, after Miller, the courts lack adequate justifications for the plenary power doctrine—at least in the absence of a new, substantive rationale for diminished protection of individual rights—in jus sanguinis citizenship cases like Miller, and, indeed, lack grounds for relying on it in immigration and nationality cases generally

Between National and Post-National: Membership in the United States

This essay argues that the concept of post-nationalism does not precisely explain the American concept of citizenship. This is due to the strict construction of the nation state in American constitutional theory, the ineffective role of international human rights norms in American jurisprudence, and the extension of protection to non-citizens based on territorialist rationales. For these reasons, the author suggests that denizenship is a more appropriate way of viewing the American citizenship model, and is one that explains how notions of personal identity can be transnational while still justifiable within traditional nation-state constructs

Theories of Loss of Citizenship

The underlying issue that I address in this essay is whether the Constitution ought to be read to prohibit denationalization of U.S. citizens. (I will use the term denationalization to refer to the government\u27s act of terminating citizenship. Expatriation will be used to refer to an individual\u27s voluntary relinquishment of citizenship.) In examining this question, I will explore citizenship from four different perspectives - rights, consent, contract, and community - in search of a theoretical framework for the Supreme Court\u27s doctrine in the denationalization cases

The Constitution in Context: The Continuing Significance of Racism

Title VII of the 1964 Civil Rights Act prohibits discrimination in employment on the basis of race, color, national origin, religion, and sex. Many Title VII cases have arisen when an applicant\u27s or employee\u27s non-conformity with an employer\u27s policy barring certain hairstyles or clothing has resulted in an adverse employment action, such as a denial or termination of employment. Generally, courts have not deemed an adverse employment action resulting from an applicant\u27s or employee\u27s non-conformity with an employment policy banning the display of mutable characteristics commonly associated with a particular racial or ethnic group a violation of Title VII\u27s proscription against racial, color, or national origin discrimination. These cases have largely been unsuccessful because of courts\u27 narrow interpretations of Title VII\u27s prohibitions against race, color, and national origin discrimination. Courts have viewed these protected categories as encompassing only immutable characteristics such as skin color and, in some instances, hair texture. Courts have also been less inclined to expressly hold that employment decisions based on racial, color, or ethnic stereotypes violate Title VII. Therefore, courts have hindered the efficacy of Title VII to achieve its mandate to ensure that individuals are not denied equal employment opportunities on the basis of race, national origin, and color. This Article specifically addresses Title VII individual disparate treatment cases involving employment policies that prohibit certain mutable, racialized characteristics and resulting adverse employment actions because of an employee\u27s non-conformity with the employment policy. In this Article, Professor Greene proposes a revised individual disparate treatment analysis for courts to adopt in such cases. Professor Greene argues that courts must employ a broader definition of race consistent with historical and contemporary understandings of race. Courts must assess the facts of these cases within a historical and contemporary social context. Additionally, courts must shift the focus from an employer\u27s intent to discriminate to the effects of the employment decision on the employee or applicant. In doing so, courts must ascertain whether the employer\u27s decisions perpetuate racial stigmatization. According to Professor Greene, if courts employ this pluralistic approach to individual disparate treatment cases involving mutable, racialized characteristics, Title VII\u27s protections for employees and applicants to be free from race, color, and national origin discrimination in employment will be strengthened. Therefore, Title VII\u27s objectives will be more fully realized

Updating Statutory Interpretation

This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. Professor Aleinikoff examines in depth the first issue raised by Professor Farber. Using metaphors of the archeological and the nautical Professor Aleinikoff describes theories of originalism and their application to statutory interpretation. Concluding that there are nonoriginalist (or nonarcheological) elements implicit in these theories, he proceeds to consider how an explicitly nonoriginalist (or nautical) theory of interpretation might work He concludes by commenting on the application of such a theory to Patterson

The Limits of Litigation: Putting the Education Back into \u3cem\u3eBrown v. Board of Education\u3c/em\u3e

A Review of Shades of Brown: New Perspectives on School Desegregation edited by Derrick Bel

Political Asylum in the Federal Republic of Germany and the Republic of France: Lessons for the United States

The recent flood of asylum claims, and the concerns it engenders, are not peculiar to the United States. Western European nations have witnessed similar increases in asylum applications over the past decade, .and institutions charged with adjudicating claims have become severely overburdened. This Article will describe the experience of the Federal Republic of Germany and the Republic of France in coping with the explosion of asylum claims. A comparative analysis may provide perspective on the American situation and perhaps suggest - or rule out - proposals for change currently under consideration in the United States. To appreciate the saliency of the German and French experiences, it is first necessary to review in greater detail the asylum process in this country