Tuan Anh Nguyen v. INS - Oral Argument

Argument of Martha F. Davis

Chief Justice Rehnquist: We'll hear argument now in Tuan Anh Nguyen and Boulais versus Immigration and Naturalization Service.

Ms. Davis.

Mr. Davis: Mr. Chief Justice, and may it please the Court:

This case raises the question of whether differential treatment of mothers and fathers under federal citizenship law violates the equal protection component of the due process clause of the Fifth Amendment.

Joseph Boulais has raised his out of wedlock son from infancy.

Under 8 USC Section 1409, an out of wedlock mother of a foreign-born child can establish her child's citizenship at birth upon proof of three things: U.S. nationality at the time of the child's birth, parentage of the child, and prior physical presence in the United States

Joseph Boulais meets all of these criteria.

However, solely because he's the male parent, the law imposes two additional criteria.

First, Mr. Boulais, as a father, must produce a signed statement that he will support the child until his 18th birthday.

The father here supported his son, but he never signed a statement.

Second, the father must before his child's 18th birthday, either legitimate, adjudicate paternity or formally acknowledge paternity, and here the father has formally acknowledged paternity, but not until his son was in his 20s.

Justice O'Connor: Miss Davis, is this an as-applied or a facial challenge?

Mr. Davis: Justice O'Connor, this is a facial challenge.

We do not believe there is any constitutional basis on which this statute could be applied to individuals.

Justice O'Connor: How do you deal with the Fiallo case?

Mr. Davis: Your Honor, the Fiallo case concerns the situation of some individuals who are citizens applying for special immigration preferences for children of those citizens or relatives of those citizens.

The Court here ruled that that was covered by the plenary power.

Here the issue concerns only citizens applying for trying to transmit citizenship at birth, benefits to... to parents, and so the difference is the question of what the extent of plenary power is.

And we believe that plenary power should stop, at the very least, before it reaches a situation where a citizen, here Mr. Boulais, is seeking to transmit citizenship benefits to a child who, as the statute indicates, once citizenship is recognized will relate back to the date of birth.

So I guess there are two basic distinctions.

One, that there's a relation back issue, so the citizen's child... the child here, once his citizenship is recognized, will have been deemed to have been a citizen from birth, and therefore there isn't any of the concern about transfer of allegiances that's the case in naturalization or also potentially the case in immigration sorts of situations.

Justice Scalia: Well, wait.

Why is there no problem with transfer of allegiances?

I mean, it's fine to make it retroactive as far as the law is concerned, but that doesn't change the reality of it.

The reality of it is he's not an American citizen until these conditions are... are met, and he's proclaimed to be such.

Prior to that he's not an American citizen, is he?

Mr. Davis: As soon as those conditions are met, then his citizenship is recognized at the time of birth.

That's recognized under statute...

Justice Scalia: But he was a citizen of some other country before then.

Mr. Davis: And once his citizenship is recognized, he will be deemed to have been a dual citizen of the country from the date of birth, but the statute itself recognizes that there isn't a transfer of allegiances by virtue of the fact that there isn't an oath of allegiance that's required for, to establish citizenship at birth, unlike naturalization, where that's a substantive requirement of the... of the recognition of the status.

Justice Ginsburg: Miss Davis, do I take... do I understand correctly the point you're making is that the people who are being brought in or sought to be brought in in Fiallo were coming in as aliens who might never become citizens, they were not coming in as citizens?

They were coming in as preference, preference-eligible aliens, and now you're saying, the distinction that you're making, if I grasp it correctly, is these people, if you are correct, will never come in as aliens.

The application is that the citizenship should be recognized immediately.

That's the distinction you're making?

Mr. Davis: That's correct, Your Honor.

Chief Justice Rehnquist: No, but Miss Davis, you're not suggesting that there's a constitutional right to have your citizenship conferred on an American, the child of an American parent brought abroad?

Mr. Davis: Not at all, Your Honor.

What we're saying is the immigration statute makes a distinction between citizenship at birth and other forms of immigration status, and that because of that distinction, the plenary power that shields in some instances immigration actions from full constitutional review should not apply here.

It should stop short of barring full constitutional review or ordinary constitutional review of transmission of citizenship from a citizen to a plenary citizen.

Justice Kennedy: But the plenary... can you explain to me why, why that is?

I assume that the plenary power has its basis, its rationale in the interest that the United States has with its relations with foreign powers.

And why is that inapplicable in... in any case arising under this particular statute?

Mr. Davis: Justice Kennedy...

Justice Kennedy: And why... to say that plenary power stops puzzles me.

Mr. Davis: Yes.

Justice Kennedy, this Court has never extended plenary power to every statute that potentially implicates foreign relations.

There's only... there are many, many that do that, including child support and environmental laws.

This Court has also never extended plenary power to every action under even the Immigration Nationality Act in INS versus Chadha, for example.

Justice Kennedy: What's the rationale for extending plenary power to the alien cases?

Mr. Davis: The rationale that this Court has offered is the idea that foreign relations is directly implicated, I presume in part because of this transfer of allegiances.

Justice Scalia: You say... you say Fiallo would have come out differently if these aliens were not only admitted but having been once they are admitted are proclaimed to have been American citizens from birth?

That would wash out the plenary power of the federal government?

Mr. Davis: Your Honor, then they would be in the same category as the citizens here.

They would have been citizens from birth.

Justice Scalia: That doesn't make any sense to me.

If... if... if... if you admit them without making them citizens from birth, you have plenary power, but if you do even the greater thing, admit them and make them citizens from birth, suddenly your plenary power disappears.

It seems to me, if anything, it ought to be the opposite.

Mr. Davis: Your Honor, here what we base our argument on is the structure of the statute as well as the long history of jus sanguinis citizenship, and this Court's ruling in Rogers versus Bellei which also indicated that citizenship at birth was subject to ordinary constitutional scrutiny, even though there isn't a right under the Fourteenth Amendment to that citizenship, even though Congress could change the rules of citizenship tomorrow, still the statute itself, the history of jus sanguinis citizenship and this Court's construction of that, of that law in Rogers versus Bellei we believe supports limiting the extension of plenary power authority to a situation where a citizen here is seeking to transmit citizenship to his child who will be a citizen at birth at the time that citizenship is recognized.

Justice Souter: Let's assume the statute was slightly different and the citizenship to be conferred did not recognize... did not relate back to birth.

Would you then say that the statute with that one change in it exceeded Congress' plenary power under the naturalization clause?

Mr. Davis: Your Honor, I guess I'm...

Justice Souter: Maybe it would be simpler if I asked the... I think I can ask the question a different way.

Do you think that the... the... the act of recognizing citizenship here for children born abroad is naturalization within the meaning of the naturalization clause?

Mr. Davis: Yes, Your Honor, it is naturalization within the meaning of the constitutional naturalization clause.

However, Congress, in implementing that clause, has made choices about how to implement it that we believe...

Justice Souter: Right, that's what I wanted to get at.

Mr. Davis: that we believe implicate the extent of the plenary power.

Justice Souter: So that Congress, so far as the clause is concerned, Congress could do this, leaving aside equal protection.

Congress can do this if it simply did not have the relation back provision?

Mr. Davis: That's... that's correct.

Justice Stevens: Yeah.

Mr. Davis: Your Honor, I mean, we certainly wouldn't be able to argue that the transfer of allegiances and those issues no longer implicated foreign relations, and that's a critical part of our argument here.

Let me turn...

Justice Breyer: Well, I wonder, suppose there were no naturalization clause, suppose it didn't exist.

Wouldn't Congress still have the power to enact this statute?

No one is being naturalized.

They are simply stating who is a citizen.

Just as, after all, no one in 1789 had been born in the United States of America or very few, and there had to be rules as to who was a citizen and who isn't...

Mr. Davis: Your Honor...

Justice Breyer: so what is this to do with naturalization?

Mr. Davis: Your Honor, this Court has held in the past, most notably in Rogers versus Bellei, that the authority to grant citizenship at birth, jus sanguinis citizenship, derives from the naturalization clause.

Now, whether in the absence of that clause Congress could still go forward I don't know because we, you know... the Court hasn't had to confront that issue.

Justice Breyer: If Congress said everyone in 1780 who has been born in the United States is a citizen of the United States, would that have been naturalizing everybody?

Mr. Davis: Your Honor, I think it would depend upon what the term naturalization meant even at that time.

We know what it means now because Congress itself has defined it in the statute to apply only to those individuals who have citizenship that is prospective only, and here Mr. Boulais and his son come forward with a claim for citizenship that relates back to birth, so it's clearly not in the same category as naturalization is defined under the current statute.

Justice O'Connor: But it is... it is naturalization in the broader sense of referring to the constitutional authority?

Mr. Davis: That's correct, but in implementing...

Justice O'Connor: And to that extent I think it makes it somewhat difficult to distinguish Fiallo.

Are you arguing that we need to reverse Fiallo if necessary?

Mr. Davis: Your Honor, we don't believe that Fiallo must be reversed in order to rule in our favor because of the distinction that we just discussed.

However, as we indicate in our brief, there are reasons to reassess Fiallo, given, in particular, the subsequent development of equal protection law that might suggest that the result in that case is one that the Court would no longer...

Justice Stevens: But if you were to reexamine Fiallo, I suppose under your view, the amendment in 1986 to the statute involved in Fiallo that adopted the position of the dissenters in Fiallo would also be unconstitutional because it basically followed the same pattern as this statute does.

Mr. Davis: That's correct, Your Honor, yes, because it retains the sex-based classifications.

Of course, there the Congress was not responding to a finding on constitutionality, so they weren't bound by that kind of a ruling.

Justice Ginsburg: Miss Davis, may we go back a few steps because you said something that surprised me.

I know that the Solicitor General took the line in its brief that there are only two kinds of citizens... born in the United States, and everybody else for constitutional purposes is naturalized.

My grandson was born in Paris of U.S. citizen parents.

I had never considered him a naturalized citizen of the United States, but is that his correct status?

Mr. Davis: Your Honor, we don't quarrel with the construction that Rogers versus Bellei adopted, which is that citizenship at birth is a form of naturalization.

However what we argue is that the Congress in implementing that power has made a distinction between naturalization under the statute and citizenship at birth under the statute, and the implications of that distinction are that the plenary power of Congress to regulate immigration does not extend to citizenship at birth because citizenship at birth relates back to the date of birth because naturalization is defined to be prospective only because there isn't a requirement of an oath of allegiance in order to have citizenship at birth acknowledged.

Justice Ginsburg: Can such a person be denaturalized?

Mr. Davis: Your Honor, I believe that that person would be covered in the same way that those citizens concerned in Afroyim and those cases whereby the Constitution for denaturalization purposes, that person could have additional conditions placed on citizenship that would not be appropriate for a jus soli citizen.

Or... yes, for a jus soli citizen.

So, for example, the conditions placed on the individual in Rogers versus Bellei, who was a citizen at birth, the residency conditions are permissible under the Constitution even though if those conditions are not filled, the individual will lose citizenship at the time that they fail to comply with those conditions.

Justice Scalia: Miss Davis, I gather your position would be different if in addition to the three conditions that you mentioned there were a fourth condition, and that is that the child of the American father swear allegiance to the United States.

Mr. Davis: If the child of the American?

Justice Scalia: Yes, yes.

Before he could retroactively be deemed a United States citizen from birth, in addition to the other three factors, he must swear allegiance to the United States.

Mr. Davis: Your Honor, no, our argument would not be different.

I'm raising that because it's an indication of the fact that Congress...

Justice Scalia: Well, I thought your argument hinged entirely upon the fact that there's no problem about changing allegiances, and this would require him to change allegiance, to swear allegiance to the United States over whatever other country he had come from.

Mr. Davis: Yes.

No, Your Honor, our argument doesn't hinge entirely on that, no, but I raise that...

Justice Scalia: I don't know what opinions... it seems to me so artificial to say that simply because you make the admission retroactive and say he shall be deemed to have been a citizen from birth, somehow the power of Congress to make people who are not born in this country and therefore automatically citizens, citizens somehow becomes abridged.

I don't... I just don't see how the retroactivity... it's such an artificial device.

Congress could make it retroactive or not retroactive.

Mr. Davis: Your Honor, I believe that the argument that I'm making reflects the construction of the statute.

The statute itself makes a distinction between citizenship and citizenship at birth and naturalization.

It lists in the section 1401 jus soli citizenship along with citizenship at birth.

Justice Scalia: I understand that, but we're not talking about the statute.

I can agree that you can... you can make a statutory distinction between those two situations, but does that convert into a constitutional distinction?

And that's what you're arguing before us, that there is some things you can constitutionally do when you make the person retroactively from birth a United States citizen or things that you can't do when you do that that you could do if you didn't make him retroactively.

Mr. Davis: Yes, Justice Scalia, the issue is the extent of the plenary power doctrine, which this Court has, as I suggested earlier, has not always applied in the immigration area, and we believe that...

Justice Ginsburg: And has never been applied in that whole line of cases.

They are all cases of people who are admitted as aliens, so if it were to extend to such a case, it would be an extension.

Mr. Davis: That... that's correct, Your Honor.

Applying it to citizens and citizens at birth, would extend the plenary power doctrine beyond where it has ever been extended in the... in the past.

Justice Scalia: Well, that assumes the person is not an alien simply because Congress says the person shall be retroactively deemed a citizen.

But for constitutional purposes, it seems to me, as opposed to statutory purposes, whether the person is an alien or not should depend upon whether the person is a natural born citizen of the United States or whether citizenship must be conferred by Congress.

Mr. Davis: Right.

Well, in fact, Your Honor, you mentioned natural born citizen, and many commentators believe that citizens at birth are deemed to be natural born citizens, so this is a category of citizenship that traditionally has had a different status than naturalized citizenship for many, many years, for centuries.

Justice Ginsburg: The debate over whether someone born abroad could be a candidate for President?

Mr. Davis: President, correct, Your Honor.

Chief Justice Rehnquist: But someone... someone born abroad is not in the same class as someone born jus solus here in the United States, which they are citizens by virtue of the Fourteenth Amendment, are they not?

Mr. Davis: That's correct, Your Honor.

However, the statute, the immigration and naturalization statute, treats those jus soli citizenship... citizens and citizens at birth in the same section, so they clearly are contemplating that many of the same protections are going to apply to those citizens.

Justice Stevens: May I just clarify one thing?

Your view is the statute is invalid on its face, which, as I take it, means that the requirements as to the children of female parents have to be applied in the same way to children of male American citizen parents born abroad?

Mr. Davis: That's correct.

Justice Stevens: So that anyone anywhere in the world at any time can prove that his parent, his father was an American citizen, has been a citizen since that person's birth, even if it was 60 years ago?

Mr. Davis: Your Honor, there... according to the remedy that we've proposed, there would still be some criteria to be met, yes, but the remedy...

Justice Stevens: Okay, criteria other than those applied to children of mother... of mother... whose mother was an American citizen.

Mr. Davis: A mother currently can sponsor a child, transmit citizenship at any time during the child's life.

Justice Stevens: Correct.

Mr. Davis: Our argument is that a father, that...

Justice Stevens: Has precisely the same right?

Mr. Davis: Should have the same right, the remedy that this Court should impose should be one that gives the...

Justice Stevens: Well, he doesn't have the right.

It's whether he has... he has already done it, merely by virtue of being a citizen and by having lived in the United States for a certain period of time.

Mr. Davis: What this Court has indicated, both in Rogers v. Bellei and also in a majority of the justices in the Miller case...

Justice Stevens: But that's your position is all I wanted to...

Mr. Davis: stated that it's recognition of existing citizenship and continuing citizenship.

Chief Justice Rehnquist: Well, if we agreed with your equal protection argument, I suppose we would have the alternative to say not simply that the father is pushed into the same favorable position as the mother, but the mother is pushed into the same unfavorable position as the father.

Mr. Davis: Your Honor, that would remedy the equal protection issue, but we believe that it would run contrary to what we know about the Court's principles in crafting a remedy.

Justice Ginsburg: Has the Court ever in those extension versus invalidation cases, has it ever taken the route of lessening the benefits instead of equalizing up?

Has it ever equalized down instead of up?

Mr. Davis: We have not been able to find a case where there has been equalization down, as you say.

Chief Justice Rehnquist: But there is always a first time.

Justice Kennedy: In this case the government's argument, the stateless person problem, takes much more prominence than it did in our earlier case, and that would seem to state a rational basis for this distinction.

Would you comment on the government's argument in this regard?

Mr. Davis: Certainly.

I mean, our position is that they need to meet the heightened scrutiny standard.

But even...

Justice Kennedy: Well, and I think it might meet that as well, but would you comment on that?

Mr. Davis: Sure.

The issue is whether or not... well, to start out, we believe that that issue is not properly in the case because we haven't challenged the physical presence requirements here, and the government as well as Congress have indicated that the way they have dealt with statelessness, concerns about statelessness is to have differential physical presence requirements for mothers and fathers.

Mr. Boulais doesn't have standing to challenge those.

He meets both those physical presence requirements.

If the remedy that we seek is imposed, those physical presence requirements will remain and will continue to do the job that the government says they are needed for in terms of addressing the potential for statelessness, but even beyond that, even assuming that it is in the case, the risk of statelessness is not gender specific.

The... there are a number of nations that... and this is set out in the Equality Now amicus brief which was submitted to the Court, there are a number of countries which have laws that are gender neutral so that there isn't any greater risk of statelessness for children of mothers than there is of fathers.

Some of those laws are avail...

Justice Kennedy: Well, but there are some nations that are not in that classification, are there not?

Mr. Davis: There are some nations that are not at that level.

There are some nations where there's a greater risk of statelessness for children of fathers, and those children are currently not getting the benefit of the generous physical presence requirements.

For example, Canada has a provision that says that if a child is born abroad and doesn't maintain connections with Canada that they will lose their citizenship by age 28.

Well, by age 28, the child of a U.S. father, the father can no longer transmit the citizenship to the child, so in fact that child of U.S. father is at much greater risk of statelessness than a child of a U.S. mother who had a child with a Canadian citizen abroad.

So the government could much better address its concerns about statelessness by either having a more generous physical presence requirements across the board because it's... any requirement increases the risk of statelessness, so it could have more generous require... more generous provisions across the board or it could have one that's tailored to the specific countries where statelessness is at issue for mothers or for fathers instead of...

Justice Ginsburg: Do I understand though that we are now engaged in an academic discussion?

Because in this case he has no standing to raise that problem since he amply meets the residence requirements, so he can't raise somebody else's case.

Mr. Davis: Exactly right.

I mean, the remedy that we seek... the Court would have to go beyond the four corners of the complaint or of the issue here, the case here in order to address the physical presence requirements.

Justice Ginsburg: And the things that hold him back, the two things, seem to me to have nothing to do with the statelessness concern anyway, the formal acknowledgment of paternity and proof of support, of 418.

Mr. Davis: That's correct, Justice Ginsburg.

Justice Ginsburg: It has nothing to do with statelessness.

Mr. Davis: And as I said, in fact, may increase the risk of statelessness because any barrier that's placed on transmittal of citizenship increases the risk of statelessness, especially absolute cutoff at age 18.

Justice Breyer: Are you saying that children of American parents born abroad, of whom there are millions and millions, are naturalized citizens and could never be President like George Romney couldn't have run for President?

Mr. Davis: I'm sorry, the children of parents born abroad are naturalized?

Justice Breyer: Yes, I mean, their... their citizenship is conferred by statute, and they are citizens from birth, and there are probably tens of millions of them, and George Romney was one of them, and I had not thought that they were naturalized citizens.

I thought they were citizens who were citizens by virtue of their birth, and they're citizens from birth, but you were saying they're the same as naturalized.

Or maybe I misunderstood.

Mr. Davis: Yes.

Your Honor, the wording of the Constitution is natural born citizens for purposes of being President or Vice President.

And what... I haven't done the research myself.

What commentators say is that natural born is the equivalent of... includes, encompasses jus soli and jus sanguinis.

But that's a different term than naturalized.

Justice Breyer: If that's so, then those who... then those who are born abroad of an American parent are natural born citizens in your view?

Mr. Davis: That's correct.

Justice Breyer: Contrasted with naturalized citizens who would have been aliens who previously were aliens and would have become citizens by virtue of a naturalization law; is that right?

Mr. Davis: Your Honor, I guess the question is whether the term naturalized in the Constitution also encompasses natural born citizens.

In Rogers versus Bellei suggested that it did.

Justice Breyer: Well, I... for present purposes what we're interested in is what standard of review to apply, and whether the extremely deferential standard applies to these natural born citizens.

Mr. Davis: I think it's... I think it's totally clear that jus sanguinis citizenship has a different history than naturalized citizenship and has traditionally by this Court as well as by Congress been treated differently.

Justice Scalia: But has not been called natural born citizenship?

I mean, isn't it clear that the natural born requirement in the Constitution was intended explicitly to exclude some Englishmen who had come here and spent some time here and then went back and raised their families in England?

They did not want that.

They wanted natural born Americans.

Mr. Davis: Yes, by the same token...

Justice Scalia: That is jus soli, isn't it?

Mr. Davis: By the same token, one could say that the provision would apply now to ensure that Congress can't apply suspect classifications to keep certain individuals from aspiring to those offices.

Justice Scalia: Well, maybe.

I'm just referring to the meaning of natural born within the Constitution.

I don't think you're disagreeing.

It requires jus soli, doesn't it?

Mr. Davis: No, Your Honor, I do disagree with that.

I believe that it encompasses jus sanguinis citizenship.

Justice Ginsburg: And any academic right is... there's a debate over that?

Mr. Davis: Is a debate over it, that's correct...

Justice Ginsburg: There is a debate over whether my grandson is a natural born citizen.

I think he is.

Mr. Davis: whether he can be Vice President.

Justice Stevens: Of course the interesting thing about that provision, it requires that he be natural born at the time of the adoption of the Constitution.

That's what it literally says.

Unidentified Justice: [Laughter]

Mr. Davis: To return to that issue briefly, I want to make sure that the Court understands that applying heightened scrutiny does not mean that the government then does not get to make its case, that the concerns about dual citizenship or concerns about statelessness might meet heightened scrutiny.

They can still come forward and in those unusual instances where they can establish that they meet that standard, apply classifications that would otherwise be suspect.

We believe those would be rare cases, but it's not that there is no review.

What it means is simply that you're saying, or that the citizens transmitting citizenship would be able to invoke the same constitutional standards as are usually invoked.

I reserve the remainder of my time for rebuttal.

Argument of Edwin S. Kneedler

Chief Justice Rehnquist: Very well, Miss Davis.

Mr. Kneedler, we will hear from you.

Mr. Kneedler: Mr. Chief Justice, and may it please the Court, the naturalization clause of the United States Constitution commits to Congress the plenary power inherent in the sovereignty of every nation to determine which aliens will be granted United States citizenship.

As this Court said in the Ginsburg case, no alien has the slightest right to naturalization unless all statutory requirements are complied with.

Justice O'Connor: Well, you've heard all these arguments this morning that this isn't a case of naturalization and not part of Congress' plenary power when a child is born of a parent that's a U.S. citizen.

Mr. Kneedler: With respect to that, I think this Court's decision in Wong Kim Ark is dispositive.

There the Court traced the history of United States citizenship with reference to the common law of England prior to the adoption of the Constitution, and in that case the Court pointed out that at common law, in order to be a citizen at common law, it was necessary for the person to be born in England.

The citizenship conferred on people who were born abroad to British subjects was conferred only by statute.

In other words, it was not regarded historically in England as a fundamental...

Justice Breyer: That's not so.

I mean, you're right in saying by statute.

Normally in all countries citizenship was conferred by statute.

The Fourteenth Amendment was passed to the problem of slavery.

But statutes traditionally transmitted citizenship most cases through blood.

Isn't that true?

And so would you say that when the United States passes a statute like any other country that transmits citizenship through blood that they treat that person who results as a citizen the same way precisely as a naturalized citizen?

Mr. Kneedler: Yes, I'm not disputing that.

The point I'm making is that this Court held in Wong Kim Ark and also held in Rogers v. Bellei that the conferral of citizenship on someone born abroad to a United States citizen is encompassed in the naturalization clause, and the important thing about Wong Kim Ark is the Court distinguished persons born to U.S. citizens abroad not on the ground that that was a more fundamental form of citizenship, but if anything, a less fundamental form of citizenship.

Justice Breyer: So, in other words, in your view, the hundreds of millions of people by now who may have been born abroad of American parents are suddenly subject, when their constitutional rights are at stake, to a less basic review by the courts than citizens who are born in the United States?

Mr. Kneedler: No, once...

Justice Breyer: Citizens of service people, citizens of millions of people who have lived abroad?

Mr. Kneedler: Once the person is a citizen, of course, then that citizen, like every other citizen, is entitled to all the rights of a citizen under the United States Constitution.

But the question here is who will be entitled to enter the citizenship of the United States to begin with, and in that respect we think this case is identical to... at least as strong as Fiallo versus Bell, and, if anything, stronger, because it is not merely the question of who will be entitled to physically enter the United States, but who will be regarded as a member of our society on a permanent basis.

Citizenship is essentially irreversible.

An alien can be expelled.

A citizen is a permanent member of the community.

Chief Justice Rehnquist: Mr. Kneedler, when you say, when you say in effect that all citizens are treated alike, certainly a naturalized citizen in the nonargumentative use, someone who has been an alien and comes here, can have his citizenship revoked.

Mr. Kneedler: Oh, absolutely.

No, I didn't mean to suggest... yes.

It's absolutely clear that a naturalized citizen can have his naturalization revoked.

For example, if it was procured by fraud, but the other important... and this was significant in Rogers v. Bellei, which had to do with the constitutionality of a condition subsequent for a citizen, a person who was born abroad to United States citizens.

In that case, it was the parallel provision here in 1401 (g) until, I believe, it was 1978, someone in that situation had... the child had to reside in the United States for some period of time after birth in order to establish the requisite connection with the United States, and that was challenged on the ground that the person having been declared a citizen at birth, there could not be a condition subsequent to perfecting it.

And this Court upheld that provision in Rogers v. Bellei, and importantly, it did so by distinguishing the children of U.S. parents born abroad from those who are born in the United States with the suggestion that Congress has greater latitude with respect to the naturalization of those persons than it does to others, precisely because they are not encompassed by the terms of the Fourteenth Amendment.

The Fourteenth Amendment refers to citizens who are born or naturalized in the United States, and the Court pointed out that persons who are born to United States citizens abroad do not fall within that description and therefore are not citizens for Fourteenth Amendment purposes.

Justice Stevens: So, if any... may I ask just a question.

Are there any statistics anywhere that tell us the size of either of the classes of children born abroad of an unmarried female parent and those born abroad of an unmarried male parent?

Do we have any idea how many people are going to be affected by this decision?

Mr. Kneedler: I'm sorry, I do not know the totals.

I think the statistics that were cited in this Court's opinion in Miller v. Albright suggest that the pool is probably larger for the U.S. citizen, children of U.S. citizen fathers rather than mothers, which I think, by the way...

Justice Scalia: That's unquestionable, isn't it?

And isn't that perhaps one of the reasons behind the differentiation in this statute?

There are large populations of children of United States servicemen in the Far East and in Germany, and... service personnel.

And I expect very few of these are the children of female service personnel.

Mr. Kneedler: I think that's true.

And one point I wanted to make, Justice, an aside here, that goes, that would go critically to the question of remedy in this case.

If we were...

Justice Ginsburg: Mr. Kneedler, before we get to that, why would it?

You said it in your brief.

It seems to me you have a tremendous hurdle in the beginning.

If the notion is that there are these men out there who are being Johnny Appleseed around, to prove by clear and convincing evidence that they are the father, for the person to even... the woman even to identify this person seems to me an... but most of the cases of men who don't want to be fathers who have in fact have sired children abroad, it isn't difficult at all to escape that obligation.

All they have to do is say, you know, I have nothing to do with this person.

I met her once, and that was it.

Mr. Kneedler: Well, I think there is probably a wide variation of the fact pattern.

I took the question to mean...

Justice Stevens: I thought we were assuming it was not... I thought we were assuming with modern techniques that it's very easy to establish the relationship now.

What is our assumption, it's difficult or it's easy?

Mr. Kneedler: Well, I took the question to be identifying the father who is...

Justice Ginsburg: Once we find out who he is...

Mr. Kneedler: Right, right, and even...

Justice Ginsburg: It may even take an awful lot of resources to find out who he is, to get him to take it.

Mr. Kneedler: It may or may not, but if the possibility of citizenship was available to people who had no prior assumption that they had any claim to United States citizenship, it is valuable enough in the world community that we would expect people to look for it.

Justice Stevens: In many, many cases, all the child would have to do is ask his mother.

Mr. Kneedler: In many cases that is correct.

I would like to go back to the point about Fiallo v. Bell because, as I said, I do believe this case is controlled by Fiallo v. Bell, if anything, the reasons for the deference to congressional powers are stronger here than they were in Fiallo v. Bell.

Justice Ginsburg: Before you do that, Mr. Kneedler, you did say something.

I keep worrying about this grandson of mine.

You said that he's not a citizen for purposes of the Fourteenth Amendment, but I assume he had the same equal protection rights and due process rights...

Mr. Kneedler: Absolutely.

Once a person is a citizen, they are a member of our national community and entitled to all of the rights of any other citizen.

Justice Ginsburg: But you think he might be denaturalized, the way a naturalized citizen could be?

Mr. Kneedler: There would have to be, certainly as a statutory matter and perhaps as a constitutional matter, some defect in the original naturalization or the original...

Justice Ginsburg: But there was no naturalization.

Mr. Kneedler: No, but that's why I think the prospect... I mean, I suppose if in a situation like this the child was recognized as a U.S. citizen on the ground that the parent was a U.S. citizen and then it turned out that the parent was not a U.S. citizen after all, then the child's citizenship could be revoked on the ground that it was fraudulently or improperly procured, so it would be a situation with a factual predicate for the grant of citizenship in the first place.

Justice Breyer: The problem with those things is usually, is insofar as you get a lesser degree of, for example, procedural protections, in certain instances there are conflicts about what the facts are, and insofar, if it is ever true that a person who is involved in naturalization gets less than full judicial review, would that same be true of, say, my daughter or millions of others, say, servicemen's children who are born abroad and who the children of servicemen and women who are abroad and not born in the United States?

Mr. Kneedler: I would think...

Justice Breyer: Naturalized people get lesser protection, less than full review.

Mr. Kneedler: I believe that if the question ever arose of the denaturalization of someone who was born abroad to United States citizens, the same standards would apply to anyone who was naturalized in the United States and therefore is a Fourteenth Amendment citizen, and I believe the standard for denaturalization is clear and convincing evidence.

I'm not sure of that, but I believe that's correct.

Justice O'Connor: I'm concerned that your time will expire before you've addressed either point that may be critical here... the application of Fiallo and if we disagree with you and think there's some equal protection problem, what about the remedy?

Will you try to touch on both of those.

Mr. Kneedler: I will.

In fact, with respect to Fiallo, we think that all of the reasons why deference to the political branches in this area applied to immigration in Fiallo apply equally here, first of all in Fiallo itself, the Court lumped together immigration and naturalization at page 79, I believe it's 792 of its opinion, in describing Congress' plenary powers.

And also first of all a reason why Fiallo applies is it's a question of who is going to enter our society.

Certainly the children or parents in Fiallo were seeking to come into the United States with the hope eventually of being citizens.

In Fiallo it was a two-step task.

Here it's a one-step, but we don't think that the analysis in Fiallo should change on that.

And therefore deciding who should be a citizen is also an aspect of who is an alien.

They are flip side to the same question.

And Congress has plenary power to control which aliens will be entitled to enter the United States.

Third, it's intimately tied up with foreign relations, and again this is a point that was made in Fiallo itself.

There the Court rejected the proposition at page 730 that the concerns about foreign relations only have to do with situations where there are grave threats to the national security or the general welfare of the United States.

The Court said it had never deferred to the branches depending upon whether there was some threat of that nature or some more individualized determination as to who will be entitled to enter the United States.

Justice Ginsburg: Mr. Kneedler, I have this problem with it.

You would surely have a huge statelessness problem if you didn't recognize that the child born abroad to U.S. citizens is a U.S. citizen because, as you point out in most countries in the world, they go by blood, not by land of birth.

So... but you don't have that situation with... an alien coming to our shores is a citizen of someplace.

So the... you call the child born abroad an alien, but in most places in the world that child would not be a citizen of the place in which that person is born; isn't that so?

Mr. Kneedler: Well, again, that may depend.

I mean, if you have a child born abroad to two U.S. citizen parents, that may be true, it may not be true, depending on the country.

Justice Ginsburg: Well, I thought you said in your brief that in most places, and I think it's right, they do not go on just solely, they go on the parentage.

Mr. Kneedler: Yes, there are countries that go both ways, but what...

Justice Ginsburg: But the person coming in in Fiallo is a citizen of someplace.

Mr. Kneedler: That is true, and of course someone declared to be a citizen under this statute may also be a citizen of someplace else as well.

There are questions of dual nationality that can arise.

Justice Ginsburg: But you brought up the problem, you said one of the reasons for this is that the child and the mother will be a citizen of no place if not of the United States.

Mr. Kneedler: That is the justification for the shorter residency requirement because that is apt to be true in many cases, but the broader point...

Justice Kennedy: And on that point, you heard obviously the colloquy between me and the petitioner's counsel.

Petitioner's counsel indicates, oh, well, there are statements, problems on the side of the father, too, just as great.

Mr. Kneedler: They are certainly not just as great.

There may be an isolated country here and there where the problem would arise, but your question and Justice Ginsburg's questions highlight another reason for deference to Congress in that area, and that is that Congress has to strive to make the laws of this nation with respect to immigration and naturalization respond or make sense vis-a-vis the laws of not just one other nation, but many, many other nations.

Justice Ginsburg: Mr. Kneedler, if Congress went back to the way it when was everything was determined by the father's citizenship, go back before 1934, suppose Congress accepts your argument or we accept your argument and say plenary power, they can do whatever they damn please, so they say children born abroad of fathers who are U.S. citizens can become U.S. citizens, but not children who are born abroad of U.S. citizen mothers where the father is an alien.

That's the way it used to be in the bad old days.

I take it from your argument if Congress wanted to go back to that, it would not offend anything in the U.S. Constitution to do so.

Mr. Kneedler: It would be subject to judicial review, and under the facially legitimate bona fide standard of Kleindienst v. Mandel and Fiallo, it would be necessary to ask what Congress was up to in a situation like that, so we are not suggesting that there is...

Justice Ginsburg: Suppose Congress wants to restore the way it was, the way it was for most of our Nation's history, that the father's citizenship gets transferred to the child, not the mother's?

Mr. Kneedler: Given the developments of equal protection under the law in this country, this Court might well conclude that it would not be facially legitimate for Congress simply to decide to go back to as you described it, the bad old days where all rights were thought to derive from the father or the husband.

So we are not suggesting that.

But this law, this law is fundamentally different from the situation that you are positing.

This law...

Justice Ginsburg: You said that might violate equal protection, but even under some plenary power notion.

Mr. Kneedler: The standard that the Court applied in Fiallo v. Bell was that... was the facially legitimate standard drawn from Kleindienst v. Mandel.

The law is subject to scrutiny, and whatever rationale is posited has to be regarded by this Court as legitimate.

Justice Ginsburg: Is there any case in all the area where they do apply the lesser standard that has ever come out against the government, against the classification that Congress made?

Mr. Kneedler: I believe the Wauchope decision that struck down the provision that you're referring to, the pre-1934 decision, if I'm remembering correctly, the Ninth Circuit decision I believe invalidated it under that standard.

Justice O'Connor: Could the statute we're considering here meet heightened scrutiny to think that applied?

Mr. Kneedler: We believe it could because fundamentally what this is about is trying to put fathers of children born out of wedlock abroad in a position where they can do the same thing that a mother can in order to put them on an equal plane with women.

It is not a product of trying to discriminate.

It is a product of trying to put men or fathers in a position where they can do the same thing that mothers can do.

And let me explain why...

Justice Souter: Why wouldn't the simpler way to do that be simply to have one uniform support or recognition standard?

I mean why do you have to have differential standards in the statute if that's all you want to do?

On your... on the factual assumptions that you are making, which may well be true, it would be easier for the children of American mothers born abroad to satisfy the standard, but that doesn't seem to be an argument for having differential standards.

Mr. Kneedler: Well, if I may explain what, as we understand it, is going on here precisely, and that is that Congress made a judgment that it wanted, while the child is still a minor, for there to be established a legal, formal recognized relationship between parent and child.

After the child is no longer a minor, at that point the child is an adult and can seek citizenship in his own right.

In this very case, petitioner Nguyen could have applied for citizenship in his own right after he became an adult and did not do so.

The idea is that under these naturalization... this naturalization provision, while one is still a child, one is under the care of the parent.

After adulthood, that's not so.

So what Congress was focusing on was not just biological paternity, but a recognized formal relationship that outside people could look at and say, yes, that is a father-child or mother-child relationship.

Justice Souter: So why not have the same criteria to determine whether that relationship, if proven, is adequate for citizenship purposes?

Mr. Kneedler: We believe that... let me start by explaining what the situation is for married parents.

When you have a child born to married parents, you have a legal relationship with mother and father at the moment of birth.

With the mother by virtue of the birth and with the father by virtue of the marriage to the mother.

That marriage legitimates the child and establishes a legal father-child relationship.

Where you do not have married children, there is no lawful relationship... or legal relationship between man and woman, that in turn creates a legal relationship between father and child.

Something else needs to be done.

In the case of the mother, the mother's relationship to the child, the legal relationship is established at the moment of birth in the same way as it is for a married mother.

The mother's name will typically be on a birth certificate or, at the very least, the birth will be witnessed by all present.

There will not be any question, just to the biological maternity...

Justice Souter: But all goes to, it seems to me that this all goes to matters of proof.

What you're pointing out is that it would be much easier for the child of the American mother to prove the things that perhaps we would all agree should be proven if citizenship is to be recognized, but I don't see how it goes to the justification of the differential standards.

Mr. Kneedler: Well, it's not a differential standard.

With all respect, it is an attempt by Congress to equalize two situations that start out quite unequal because, as I described, at the moment of birth the mother has a legal relationship with the child, that is true in the United States.

It is true virtually throughout the world.

The child is born to the mother, the mother has custody as a legal matter, and before that child can be taken away from the mother, the mother would have to give it up, relinquish rights, legal rights, or they would have to be taken away from her.

In the case of the father that is not true until paternity is established in some formal or legal way, and all that Congress has done here is said that that has to be done before the age of 18, and as this Court's...

Justice Ginsburg: You're talking to children not born to a marriage because...

Mr. Kneedler: Yes.

Justice Ginsburg: It used to be in the old days, even though the mother bore the child, she was not the parent that counted.

Mr. Kneedler: Right.

Prior to 1986 the only way that that legal relationship could be established with respect to the child who was born out of wedlock was by legitimization, and...

Justice Breyer: Why before 18?

1986.

Mr. Kneedler: Because Congress...

Justice Breyer: Either way.

Mr. Kneedler: Because Congress decided that derivative citizenship from a U.S. citizen should only apply while the child is, in fact, a child.

You have the formal legal relationship which can then be a springboard for a practical relationship between parent and child, but not only that, citizenship itself is a formal relationship between the citizen and the country, and Congress could reasonably conclude that in order to recognize a formal legal relationship between a child in the United States, a central element of that, the relationship of the child to parent should have a comparable formality and recognition so that it is recognized by the father and child and by those looking at that relationship as not just a biological relationship, perhaps even a deep biological relationship, but a lawful, formal recognized one that the rest of the world and this country can look to, because citizenship, in fact, carries rights and responsibilities on behalf of both the citizen and the nation, rights of protection, rights of duties to serve in the Armed Forces, and Congress could reasonably decide that it is not sufficient that out there somewhere during a child's minority there was someone who was a biological parent.

It is necessary that the formal legal relationship be regarded as in existence during the minority.

Justice Breyer: This presupposes that the father accepts all this, I mean, but just doesn't do it in the way that it's said, or suppose a mother.

I mean, you understand the problem.

You can create situations where the mother is not the caretaker, where the father is the caretaker, and you get everything the other way around.

What is the answer to that?

I mean, what's the... or you could be in a country where it doesn't descend one way or you could be in a state where they have different relationships.

I mean, why not tie it to the relation or the statelessness or to the thing you're aiming at rather than to gender?

Mr. Kneedler: Well, one of the things that Congress is aiming at is the existence of the legal relationship by 18.

That's set forth explicitly in the statute.

Justice Scalia: We do that even domestically, don't we?

I mean, we do not treat biological fathers as necessarily having any rights, whereas we do treat biological mothers as having rights from the outset.

Mr. Kneedler: That is correct, unless and until the father's paternity is formally established.

Justice Souter: Isn't that the crucial point?

Isn't it the case that if you were arguing this case 20 years ago before DNA testing had become current, one of your arguments and one that we might well accept would be, there's a terribly difficult problem of proof here, and one of the interests of the United States is to avoid fraud in claims of citizenship.

But that issue is gone now, isn't it?

Mr. Kneedler: It's not entirely gone because while DNA... it's important not to focus solely on the domestic situation in the United States in looking at this law, and that goes both with respect to assumptions about proving paternity and assumptions about what the law is or ought to be.

The other nations in the world are not necessarily living under the same availability of medical care, the same...

Justice Souter: Well, if that's the case, then the proof of the relationship is simply going to be much more difficult for the child who is in this other country without the benefit...

Mr. Kneedler: That's true, but the age 18...

Justice Souter: And how does the United States suffer simply because under a nondifferential standard the child abroad without a DNA lab nearby is going to have a tough time proving the relationship?

Mr. Kneedler: Yes, although the age 18 would help to deter some fraudulent claims, but that's not our principal submission here.

Our principal submission is that the recognition of the legal relationship is itself a legitimate interest, and in this respect we think this case is very similar...

Justice Souter: And isn't the answer to that then require the indicia of recognition to be the same for mothers and fathers?

Mr. Kneedler: Well, Congress could reasonably conclude that with respect to mothers, and this is true of both mothers in wedlock and out of wedlock, that the legal relationship is established at the moment of birth.

This Court pointed that out in the Lalli decision and pointed it out... we quoted page 34 of our brief from this Court's decision in Lehr v. Robertson which we think is very instructive.

There the Court said the mother carries and bears the child.

In this sense her parental relationship is clear.

The validity of the father's parental claims must be gauged by other measures.

And again this is not just proof.

Justice Souter: That simply means that Congress has nothing to lose by a differential standard.

It simply means that the child of the mother is going to have an easier time proving it.

Mr. Kneedler: But if Congress could conclude that in virtually every case that requirement is satisfied at the moment of birth, it would be unnecessary to require the mother to go through that, and in fact if that sort of requirement would be imposed now there could be all sorts of children of U.S. citizen mothers who would never have taken a step like that.

Justice O'Connor: Mr. Kneedler, your time is almost up.

Not a word yet about remedy.

Well, he's had no choice with all the...

I know, but I think we need to talk about it briefly if we could in any time remaining.

Mr. Kneedler: Yes.

Justice O'Connor: Suppose we think there is an equal protection problem and remedy has to be addressed.

Mr. Kneedler: On the remedy...

Justice O'Connor: You have a severability clause, so...

Mr. Kneedler: There is a severability clause, but we think the proper remedy would be to sever 1409 and put the ball in Congress' court to decide how to deal with this particular problem.

We think that's true for several reasons.

For one thing, if this Court were to broadly declare that a whole new category of persons were United States citizens there may be some question as to whether Congress could undo that.

That, coupled with the point that this Court made in Ginsberg and Pangilinan that it's questionable whether a court can ever declare someone to be a citizen when Congress has not so declared, we think way powerfully in the direction of striking section 1409 and letting Congress decide what is the proper remedy in the situation.

Justice Ginsburg: Mr. Kneedler, how does that differ from the clause of the Constitution that says no money shall be drawn from the treasury but in consequence of appropriations made by law, no money, and yet you know the whole line of cases from Frontier out to Wescott that this Court thought was compatible with that clause.

I don't see any difference, frankly, between those two.

Mr. Kneedler: Because in our view the admission to citizenship is so central to the formation of our society and... our society under the Constitution that it is fundamentally different, and this Court says...

Justice Ginsburg: No money shall be drawn from the treasury but in consequences of appropriations made by law.

Mr. Kneedler: Right, and in the situations you're describing, you're describing situations that arise wholly in the domestic context.

Here we have...

Justice Stevens: May I ask you just one brief question.

After our decision in Miller against Albright, did anyone in Congress raise this issue for further consideration, to your knowledge?

Mr. Kneedler: I'm not aware whether a bill was introduced.

I did want to point out one further, one last thing on the question of remedy.

If one thing is clear from 1940 until 1986, it is Congress did not want U.S. citizenship to pass solely by virtue of mere biological paternity.

Congress insisted on something more in 1940 and 1952 and 1986, in 1952.

In all of those situations, Congress moved to make things easier for U.S. citizen fathers to transmit citizenship.

From 1952 to 1986, only legitimization, which often meant marrying the mother, was adequate.

In 1986 Congress tried to ease things to make it easier for U.S. citizen fathers to put themselves in the same position as U.S. citizen mothers, by providing for the acknowledgment of the child in writing so that it would not be necessary to resort to the varying state laws regarding legitimization or elsewhere.

The last point I would like to make with respect to... two other points.

One, this is a transaction that occurred abroad, not in the United States.

It involved one alien and one U.S. citizen.

This is not a situation in which the heightened scrutiny under our Constitution would ordinarily be thought to apply because of a solely domestic setting, but I should point out that...

Rebuttal of Martha F. Davis

Chief Justice Rehnquist: Thank you, Mr. Kneedler.

Ms. Davis, you have two minutes remaining.

Mr. Davis: Thank you.

First, in response to Justice Stevens' question about whether or not any bill was introduced in Congress, no, there was not.

Mr. Kneedler spent a great deal of time talking about the legal relationship which he asserts is automatically established at the time of birth between a father and child.

In fact, as this Court knows, that to the extent that that exists, it's a legacy of coverture and common law discrimination which this Court has previously condemned in Frontiero versus...

Justice Stevens: Do you think Lehr against Robertson was correctly decided?

Mr. Davis: I'm sorry?

Justice Stevens: Do you think Lehr against Robertson was correctly decided?

Mr. Davis: Your Honor, I think it can be distinguished from this case, aside from my view of its propriety.

This... in Lehr versus Robertson the issue required the state to decide between competing parents, and to do that quickly because of the emotional trauma involved with the adoption.

Here there isn't any need to create a hierarchy between parents, any need to create those kind of classifications to make that decision proceed quickly, and so therefore, the government interests are different...

Justice Ginsburg: Is there a problem for the child in Lehr?

Lehr, one of the grave concerns I thought was holding up an adoption, holding up placing a child in a secure setting.

Here you have none of that.

It would benefit the child, surely, to be a U.S. citizen.

You're not hurting the mother.

It's worlds different from Lehr.

Mr. Davis: Right.

Exactly, Your Honor.

And so, no, I don't believe that a ruling in our favor in this case would require this Court to reassess the decision in Lehr.

In addition, the Court asked about the question of the numbers that would be involved here, and there's no indication in the legislative history that the Congress has been concerned about that in looking at this statute, as Mr. Kneedler just indicated.

In fact, the statute has progressively gotten more liberal, and I think that that underscores the fact that in... as this Court looks at the intent of Congress in crafting a remedy that the Court should take into account, that Congress has progressively gotten more liberal in addressing this issue.

Most recently in 1986, the Congress eliminated the... or reduced the ten-year residency requirement down to five years.

Now, that had presumably a significant effect on the additional numbers of individuals who could seek transmission of citizenship under this law.

Yet, there was no mention of that in the legislative history as being a factor that was influencing in any way Congress' view of this.

In addition, there are other indicia of Congress' intent.

One is that Congress has itself moved away from this notion...

Chief Justice Rehnquist: Thank you, Miss Davis.

The case is submitted.