THE CONSEQUENCES OF RESTRICTED HEALTH CARE ACCESS FOR IMMIGRANTS

 

Annals of Health Law Summer 2008

THE CONSEQUENCES OF RESTRICTED HEALTH CARE ACCESS FOR IMMIGRANTS:  LESSONS FROM MEDICAID AND SCHIP

Janet M. Calvo [FNa1]

Copyright © 2008 Loyola University Chicago School of Law, Beazley Institute for Health Law & Policy;   Janet M. Calvo

ABSTRACT

Medicaid and Child Health Insurance through SCHIP are federal programs designed to fill the gaps in health care access for low-income individuals. However, qualification for these programs is severely restricted based on citizenship status. These restrictions pervert the concept and provision of emergency care.  They undermine public health objectives that protect the public at large, limit access to eligible citizens, and also impede the effective and economic functioning of the healthcare system. The restrictions on health care access for noncitizens undermine public health policies relating to the control of contagious diseases like tuberculosis (“TB”), severe acute respiratory syndrome (“SARS”), and pandemic influenza, all of which require access to medical care for early detection and response. Additionally, the Medicaid and SCHIP restrictions impede the reduction of infant mortality and morbidity, the promotion of child health, and the control of chronic disease.

The perceived and actual adverse immigration consequences of obtaining health care also discourage  noncitizens who have access from getting the health care they need. Furthermore, the restrictions to health care access wreak havoc on the administrative and fiscal underpinnings of health care programs and frustrate medical and health administration professionals. Determining eligibility for care on the basis of immigration status requires difficult analysis and shifts a significant amount of resources away from providing health care. Moreover, immigrants have been made scapegoats in a system of conflicting local, state, and federal responsibilities that have inflicted fiscal strains on public hospitals, clinics, and state budgets for Medicaid. The restrictions shift costs to local government and not-for-profit entities that have no control over immigration policy.

I. Introduction

Health care access reform is again at the forefront of public concern. State governments and presidential candidates are proposing various approaches to change the healthcare system. [FN1] These proposals recognize the serious individual, public health, and health system consequences of a society with up to fifty million uninsured and increasing numbers of underinsured. [FN2] However, current proposals to reform health care do not directly address the issue of health care access for noncitizens, particularly those in the United States without status (sometimes labeled undocumented, unauthorized, or illegal immigrants). The exclusion of noncitizens from these healthcare models is in part attributed to Congress’ failure to address another area in need of substantial reform: the immigration system. [FN3] This omission leaves approximately twelve million residents in the United States without a legal status. [FN4]

To be effective, any health care access reform proposal must address the noncitizen members of this society, rather than focusing merely on which individuals are “entitled” to be included. There are significant public health and health system consequences to restricting health care access, particularly for this minority segment of the U.S. population. This article will discuss these consequences that arise from the exclusion of noncitizens from health care access reform.

Among the programs that have limited immigrants’ access to health care, the Medicaid and State Children’s Health Insurance Program (“SCHIP”) initiatives have placed various restrictions on health care access of noncitizens. This article analyzes the public health and health system consequences of the limitations on immigrants’ access to the Medicaid and SCHIP programs to illustrate the issues that arise in the consideration of immigrant status in any healthcare system. Attention to the Medicaid and SCHIP programs is also important because these programs are poised to remain as the stop gap programs in most of the reform proposals advanced by the 2008 presidential candidates. [FN5]

Medicaid and Child Health Insurance through SCHIP are federal programs designed to fill the gaps in health care access for low-income individuals. However, qualification for these programs is severely restricted based on citizenship status. This article explains how these restrictions pervert the concept and provision of emergency care. It further discusses how they undermine public health objectives that protect the public at large, limit access to eligible citizens, and also impede the effective and economic functioning of the healthcare system. The restrictions on health care access for noncitizens undermine public health policies relating to the control of contagious diseases like tuberculosis (“TB”), severe acute respiratory syndrome (“SARS”), and pandemic influenza, all of which require access to medical care for early detection and response. Additionally, the Medicaid and SCHIP restrictions impede the reduction of infant mortality and morbidity, the promotion of child health, and the control of chronic disease.

This article further demonstrates how concern about enforcing the restrictions on health care access through Medicaid for noncitizens has created significant barriers for citizens as well. Citizens now have to prove their status with particular forms of documentation not easily accessible to many low-income individuals. The perceived and actual adverse  immigration consequences of obtaining health care also discourage those noncitizens who may have access from getting the health care they need.

Furthermore, the restrictions to health care access wreak havoc on the administrative and fiscal underpinnings of health care programs and frustrate medical and health administration professionals. Determining eligibility for care on the basis of immigration status requires difficult analysis and shifts a significant amount of resources away from providing health care. Moreover, immigrants have been made scapegoats in a system of conflicting local, state, and federal responsibilities that have inflicted fiscal strains on public hospitals, clinics, and state budgets for Medicaid. The restrictions shift costs to local government and not-for-profit entities that have no control over immigration policy.

Finally, this article discusses the consequences of the lack of provision of health care in the context of the American healthcare system. It addresses the opposition to coverage for noncitizens, based on a desire by some to implement restrictive immigration policy through health care policy. This article concludes that limiting health care access for legal permanent residents and other aliens permanently residing in the United States does not make sense from a public health or health system perspective. Although providing health care access to those without documented status is a controversial issue, health care reform would be most effective if all persons residing in the United States were included in health care access programs. At the very least, healthcare services that have major public health consequences and fiscal implications must be provided without regard to citizenship status in any system reform plan.

 

II. Medicaid and SCHIP in the Current American Healthcare System

 

A. Overview

 

The American healthcare system, unlike those in many other industrialized nations, is not a national system of comprehensive health care access. Rather, the American system relies predominantly on health insurance from employers for workers and their families. [FN6] Yet, the United States does not require employers to provide insurance to their employees. [FN7] As a result, there are millions of people in the United States who are employed but without healthcare coverage. [FN8] Moreover, America’s  immigration laws do not require healthcare coverage by employers who seek employment-based visas for employees as permanent residents or on long-term work-related visas. [FN9]

A variety of federal, state, and local government programs support–and some would say subsidize–the employer choice health insurance system. The primary government programs are Medicare, Medicaid, and SCHIP. Medicaid supplies federal matching money for states to provide health care to persons deemed to have inadequate economic resources to obtain health care. [FN10] SCHIP, an initiative focused on child health, provides federal grants to states to assist in providing healthcare coverage to low-income children. [FN11] Medicare is a federally run program that administers subsidized health insurance for the aged and disabled that is supplemented by the Medicaid program. [FN12]

Medicaid and SCHIP are funded in part by the federal government and in part by states and localities. These programs have income and resources eligibility criteria. [FN13] Thus, many uninsured workers who do not have sufficient resources to purchase private health insurance are denied assistance because they have too much income to qualify for the government-sponsored programs. In addition to income and resources requirements, noncitizens face barriers based on immigration status. Under the current system, the noncitizen population contains many individuals who clearly meet economic criteria for the government programs, but who are barred because they cannot meet immigration status criteria. [FN14]

Thus, the underlying problems and issues of the healthcare system become more intense and complicated when health care access of noncitizens is considered. The dependence on an employer-based insurance  system is problematic for many noncitizen workers who are employed in industries that usually do not provide health insurance, such as agriculture, cleaning, and food services. [FN15] Moreover, in recent years and especially since 1996, the federal government has imposed restrictions on noncitizen participation in Medicaid and SCHIP. [FN16] Additionally, states and localities bear the brunt of federal policies that attempt to promote immigration policy through programs designed to achieve public health objectives. As a result, states and localities have borne the fiscal and societal costs of federal non-participation in funding health care for noncitizens. [FN17]

B. The Federal Limitations on Medicaid and SCHIP

Under the sweeping and controversial changes brought about by the enactment of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“PRWORA”), many legal permanent residents and all aliens permanently residing in the United States under color of law were deemed ineligible for most forms of public benefits, including Medicaid and SCHIP. [FN18] Noncitizens with no form of immigration authorization continued to be ineligible. Otherwise ineligible noncitizens could receive care under a few exceptions, the most important being treatment for an emergency medical condition under Medicaid. [FN19] SCHIP mirrored Medicaid eligibility but nonetheless permitted for some prenatal care through a subsequent regulatory interpretation. [FN20]

Prior to 1996, aliens who were legal permanent residents were fully Medicaid-eligible on the same basis as citizens. [FN21] Also prior to 1996, aliens  otherwise permanently residing in the United States under color of law qualified for Medicaid as well. [FN22] This group included aliens residing in the United States with the knowledge and acquiescence of the immigration service, as well as numerous categories of aliens who specifically met the criteria, including an open-ended category through which individuals could demonstrate that they were permanently residing under color of law. [FN23]

The “permanently residing under color of law” category reflected the complicated reality of immigration status. Particularly with regard to Medicaid eligibility, Congress intended a broad interpretation of this category that included those residing in the country pursuant to immigration law, policy, and practice. [FN24] The legislature and subsequently the judiciary acknowledged that the immigration system included diverse categories that afford an ability to live in the United States. [FN25] Further, the “permanently residing under color of law” category recognized the complexity of the process of changing immigration status and the numbers of noncitizens who find themselves in a bureaucratic limbo while they try to provide the documents and demonstrate they meet the criteria for a status that would allow continued residence in the United States. [FN26]

Since 1996, however, the federal government has withheld eligibility to both legal permanent residents and aliens permanently residing under color of law. [FN27] Medicaid eligibility initially depends on whether an alien has been classified as a “qualified alien.” [FN28] “Qualified aliens” include legal permanent residents, refugees, asylees, aliens granted withholding, conditional entrants, Cuban/Haitian entrants, aliens paroled into the United States for at least one year, and certain abused spouses and children of U.S. citizens or legal permanent residents if there is a substantial connection between the abuse and the need for Medicaid. [FN29]

However, even some “qualified” aliens are not eligible because of their date of entry into the United States. Persons who become legal permanent residents after August 22, 1996, are barred from receiving non-emergency Medicaid for five years beginning on the date they obtained their status. [FN30] After five years, a permanent resident can still be barred by the sponsor deeming provisions if the alien had a sponsor who signed an affidavit of support. [FN31] States may opt to cover permanent residents who have been in the United States on or before August 22, 1996, and legal permanent residents who have been in the United States for more than five years. [FN32] However, all otherwise eligible aliens qualify only for treatment of an emergency medical condition covered by Medicaid. [FN33]

C. Coverage for Pregnant Women and Children under Medicaid

Medicaid eligibility for pregnant women [FN34] and children was expanded during the 1980’s and 1990’s. [FN35] Pregnant women and children are eligible for Medicaid at higher incomes than other Medicaid applicants. [FN36] States that participate in Medicaid must provide certain services for children: Early and Periodic Screening, Diagnostic, and Treatment Services (“EPSDT”). [FN37] However, Medicaid excludes some pregnant women and children based on alien status, even if they would otherwise be eligible based on income.

A controversial interpretation of SCHIP allows the provision of health care to “a child from the time of conception.” [FN38] Theoretically, this allows states to choose to provide some prenatal care to a pregnant woman for the benefit of the fetus regardless of the woman’s citizenship status. [FN39] However, the care provided is limited and the efficiency of providing appropriate prenatal care through this approach has been criticized. [FN40]

D. Emergency Care Under EMTALA and Medicaid

1. EMTALA

Congress passed the Emergency Medical Treatment and Labor Act (“EMTALA”) [FN41] to guarantee emergency health care to every individual and to prevent patient dumping by hospitals and providers. [FN42] EMTALA’s approach reflects the current system of handling medical emergencies in the United States, which involves taking a patient to a hospital emergency room. EMTALA requires that any hospital with an emergency room provides emergency care without regard to the patient’s ability to pay. [FN43] Further, the act penalizes hospitals or physicians who fail to provide care by imposing fines and terminating their participation in the Medicare system. [FN44] Under EMTALA, if a person comes to a hospital that has an emergency department, the hospital must provide an appropriate medical screening examination to determine whether an emergency medical condition or active labor exists. [FN45] If the patient has an emergency medical condition, the hospital must administer any necessary stabilizing treatment or transfer the person to an appropriate medical facility. [FN46] The act defines an emergency medical condition as a medical condition that manifests itself by acute symptoms of sufficient severity such that the absence of immediate medical attention could reasonably be expected to place the health of the individual (or, with respect to a pregnant woman, the health of the woman or her  unborn child) in serious jeopardy, inflict serious impairment to bodily functions, or cause serious dysfunction of any bodily organ or part. [FN47]

Despite EMTALA’s noble goal of preventing hospitals from refusing to treat patients because they are unable to pay, the act’s effectiveness suffers from a lack of funding. [FN48] Consequently, hospitals must provide these required services without regard to the patient’s ability to pay, causing hospitals to increasingly struggle with the costs of uncompensated care. Hospitals may bill the patients for the emergency services, but if the patients do not have insurance or sufficient economic resources, the government does not compensate the hospital for the care. [FN49]

However, Section 1011 of the Medicare Prescription Drug Improvement and Modernization Act of 2003 (“MMA”) allows providers to recoup some of the costs of caring for uninsured, undocumented aliens who could not afford emergency care. [FN50] The MMA funds are distributed among states on the basis of their relative undocumented alien populations. [FN51] Payments can be made directly to hospitals and certain physicians for unreimbursed costs under EMTALA. [FN52] This provision, however, does not effectively address uncompensated care outside of the hospital, particularly for noncitizens because they are less likely to use emergency rooms than citizens. [FN53]

2. Care for Emergency Medical Conditions Under Medicaid

All otherwise eligible aliens are entitled to Medicaid coverage for “such care and services [as] are necessary for the treatment of an emergency medical condition of the alien.” [FN54] An “emergency medical condition” is a  medical condition (including emergency labor and delivery) that manifests itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to place the patient’s health in serious jeopardy; inflict serious impairment to bodily functions; or cause serious dysfunction of any bodily organ or part. [FN55] As will be discussed more fully below, what meets this definition has been hotly contested in the courts and between states and the federal government.

III. Restrictions on Alien Eligibility for Health Care Distort the Provision of Appropriate and Effective Care for Emergency Medical Conditions

Under Medicaid, those who do not fit into an eligible immigration status or who cannot prove their citizenship status are limited to treatment for an emergency medical condition. There has been confusion and controversy about what constitutes treatment for an emergency medical condition. Moreover, the limitation of noncitizen access to care for emergency medical conditions has undermined the ability of medical professionals to prevent emergencies and to treat medical conditions in a manner consistent with their obligations to save lives and prevent damage to health.

Individuals in need of care and providers have argued for the definition of an emergency medical condition that reflects the reality of how conditions and illnesses are treated in the healthcare system. State and federal courts have divergently interpreted the statutory definition of treatment for an emergency medical condition. [FN56] Moreover, some view the outcome of court interpretations as inconsistent even when the courts apparently apply the same legal standard. [FN57] Courts’ varying interpretations of what constitutes treatment for an emergency medical condition have created negative consequences not only for the individuals in need of care, but also for the providers of emergency services.

A. Initial Interpretations Respected Medical Judgment

Initially, the interpretation of the statutory language defining an “emergency medical condition” recognized a myriad of situations and  conditions, and relied on professional medical judgment in the context of consistent and appropriate medical care. [FN58] In adopting a regulation regarding emergency conditions, [FN59] the federal department of Health and Human Services (“HHS”) acknowledged that the term should be construed broadly and consistently with medical judgment in the context of the variety of conditions, illnesses, and treatments that affect diverse individuals. [FN60] The statement reads, “[w]e believe the broad definition [of emergency medical condition] allows States to interpret and further define the services available to aliens . . . .” [FN61] HHS also recognized the need for deference to medical judgment by defining these services as “necessary to treat an emergency medical condition in a consistent and proper manner supported by professional medical judgment.” [FN62] The explanation further addressed the complex individual decisions that needed to be made with medical judgment, stating that “the significant variety of potential emergencies and the unique combination of physical conditions and patient’s response to treatment are so varied that it is neither practical nor possible to define with more precision all those conditions which will be considered emergency medical conditions.” [FN63]

Following this regulation, some state courts took an approach that respected the physician’s judgment, viewing treatment for an emergency medical condition along a continuum. [FN64] As described below, the Second Circuit subsequently took a more restrictive approach that approved treatment for stabilization and acute symptoms, but not treatment to respond to serious health and life threatening conditions. [FN65] State courts then struggled to respond to this more restrictive standard while trying to reflect the realities of medical practice and the consequences of failure to provide treatment. [FN66]

In the 1995 case of Gaddam v. Rowe, a Connecticut court interpreted the Medicaid statute to provide for care and services necessary for the treatment of an emergency medical condition with deference to medical judgment about the consequences of a condition that initially presented as an emergency. [FN67] The patient was hospitalized at the outset with acute  symptoms of kidney failure and was subsequently put on a course of outpatient dialysis. [FN68] The court found that the patient continued to have the life threatening medical condition of last stage renal disease, [FN69] thus Medicaid coverage existed for outpatient dialysis treatment necessary to keep the patient alive. [FN70] Further, the court stated that the statute providing for treatment of an emergency medical condition did not require medical “Russian roulette” of stopping the treatment, waiting a short time for symptoms to recur, and then rushing the patient to the hospital to restart treatment before the patient dies. [FN71] It rejected the notion that the medical treatment will not be covered once the acute symptoms dissipated if the symptoms would quickly return after the medical treatment was halted. [FN72]

An Arizona court focused on the consequences described in the statute of failure to provide medical care. [FN73] In Mercy Healthcare Arizona, Inc. v. Arizona Health Care Cost Containment System, the court addressed the emergency medical care needed by a car accident victim who suffered a severe head injury that left him unable to speak, paralyzed in his lower extremities, and dependant on a feeding tube. [FN74] The court held that the statute defining an emergency medical condition does not limit coverage to treatment services while acute symptoms continue. [FN75] The court concluded that once a medical condition manifested itself through acute symptoms, covered services for the treatment of that condition may continue, so long as the absence of immediate treatment could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of an organ or body part. [FN76]

B. More Restrictive Interpretations Followed

The Second Circuit’s decision in Greenery Rehabilitation Group, Inc. v. Hammon presented a more restrictive interpretation that did not view medical care along a continuum and did not focus on the consequences of removal of care. [FN77] The court found that care provided to two patients did  not meet the definition of emergency medical care, because the patients had been stabilized and their acute symptoms treated; thus, the court viewed them as suffering from chronic conditions. [FN78] The court did not sufficiently consider that the withdrawal of the continuous medical attention could reasonably be expected to place the patients’ health in serous jeopardy. [FN79]

In Greenery, both patients were placed in a rehabilitation facility after sustaining severe head injuries, one from an automobile accident, and the other from a gun shot wound. [FN80] The first patient was a bedridden quadriplegic with a feeding tube; the second was unable to walk and required monitoring and medication for seizures. [FN81] The treating physicians at their rehabilitation facility believed the patients were receiving care for an emergency medical condition because their continuous medical care was necessary to prevent serious risks to their health. [FN82] The circuit court found that the initial treatment for the head injuries was covered, but that the continuous treatment after the patients had been stabilized was not covered. [FN83] The court concluded that stabilization ended the emergency; thus, subsequent care addressed a chronic condition that did not meet the statute’s definition of an emergency medical condition. [FN84] The court stated that to meet the statutory definition, the patient had to be suffering from acute symptoms that coincided in time with the medical condition. [FN85] Further, the court stated that for a medical condition to be an emergency, the medical condition had to be a sudden, severe, and short lived illness or injury that required immediate treatment to prevent further harm. [FN86]

After Greenery, state courts struggled to interpret the statute providing for treatment of an emergency medical condition. A Connecticut court, asserting that it was bound by Greenery, held that continued and regimented care by dialysis was not treatment for an emergency medical condition. [FN87] The court made the chilling statement: “The fatal consequences of the discontinuance of such ongoing care does not transform into emergency medical condition care.” [FN88]

However, the Supreme Court of Arizona in Scottsdale Healthcare, Inc. v. Arizona Health Care Cost Containment System Administration disagreed in  part with the approach taken in Greenery. [FN89] The court rejected the reliance on the notion of stabilization and stated that it was not practical to focus on whether the initial injury was stabilized or the type of ward in which the patient received treatment. [FN90] However, the court did concur with Greenery in finding that the patient’s current medical condition must manifest through acute indications of injury or illness such as to qualify as an emergency medical condition. [FN91] The court stated that this determination was one of fact and remanded the case to the trial court. [FN92]

In Scottsdale, the court pointed to one of the patients as an example of factual determinations that had to be made. [FN93] The patient was a gunshot wound survivor. [FN94] The bullet hit a major artery causing extensive damage, for which his hospital treatment spanned multiple surgeries over the course of eleven months. [FN95] While hospitalized, the patient was occasionally moved from an acute care bed to a sub-acute unit. [FN96] The state agency had determined that the care in the sub-acute unit was not covered care thus focusing only on the place in which the treatment was provided. [FN97] The court, however, indicated that fact finding was necessary because the condition the patient suffered in a sub-acute unit could have continued to manifest itself by acute symptoms of sufficient severity that medical attention was required to prevent placing his physical well-being in serious jeopardy. [FN98]

C. Controversy Developed in the Context of Cancer and Chemotherapy

Questions about what constitutes an emergency medical condition have also arisen in several cases involving treatment for cancer, especially chemotherapy. In Szewczyk v. Department of Social Services, the Supreme Court of Connecticut applied the more restrictive Greenery standard to treatment for acute myelogenous leukemia and found that it met the statutory criteria of treatment for an emergency medical condition. [FN99] The patient first sought care when he was in intense pain and near collapse. [FN100]  After a diagnosis he was admitted to a hospital and treated for approximately one month with surgery, biopsies, and chemotherapy. [FN101] The court found that the Greenery standard had been met because the patient sought coverage for “the finite course of treatment of the very condition that sent him to the emergency room and not for long-term or open-ended nursing care.” [FN102] In reaching its conclusion, the court noted that the treating physician had stated that acute myelogenous leukemia is a rapidly fatal disease unless treated aggressively with chemotherapy administered in a hospital and in the absence of the therapy the patient probably would have likely died. [FN103]

A North Carolina appellate court in Luna v. Division of Social Services also found that chemotherapy qualified as treatment for an emergency medical condition. [FN104] The patient underwent a three month course of treatment for primary central nervous system lymphoma and a spinal cord tumor. [FN105] The state agency had denied coverage for the intravenous chemotherapy treatments provided in the hospital’s oncology unit. [FN106] The treating physician explained that this type of cancer had a rapid life-threatening progression requiring immediate treatment and that the surgery and cycles of chemotherapy were best considered a single course of treatment. [FN107] The court found the approach of the Arizona courts to be most applicable and remanded the case to resolve the factual issues of whether the patient’s condition was manifesting itself by acute systems and whether the absence of immediate medical treatment could reasonably be expected to place his health in serious jeopardy or result in serious impairment to bodily functions or serious dysfunction of an organ or body part. [FN108]

However, in Diaz v. Division of Social Services, the Supreme Court of North Carolina denied coverage to chemotherapy treatments for acute lymphocytic leukemia. [FN109] In the court’s view, the leukemia was not an emergency medical condition when the patient received the chemotherapy because when the chemotherapy was administered, the patient’s condition had improved and was stable. [FN110] The court acknowledged that the patient would have regressed into a state of emergency had he not received the chemotherapy. [FN111]

D. Conflicts Between State and Federal Authorities

The definition of emergency medical condition under Medicaid has been an area of contention not only in the courts, but also between state and federal authorities. [FN112] Frequently, the controversy revolves around whether a person in need of medical care is eligible and can obtain the care. However, the source of funding also contributes to this controversy. Hospitals and providers, confronted with what they view as an emergency, have legal and ethical obligations to expeditiously provide and continue necessary medical care. [FN113] Further, they may provide the care with an understanding that the person is Medicaid eligible, but then must confront whether government officials will agree with their assessment of what constitutes appropriate treatment of an emergency medical condition. State Medicaid programs decide whether the provider of health services will be reimbursed for the health care provided to patients claiming Medicaid eligibility. [FN114] States, particularly those with significant immigrant populations, face federal rejection of their determinations, subjecting them to loss of federal dollars for reimbursement of Medicaid expenses. [FN115]

New York is one such state that had to fight for federal reimbursement for medical services rendered to Medicaid eligible patients. After a federal audit, the Federal Center for Medicaid Services challenged determinations made by the state of New York. [FN116] Because of the audit, New York will not receive millions of dollars in federal reimbursement for Medicaid expenses. [FN117] More specifically, one chief source of conflict between state and federal governments concerns whether the provision of chemotherapy can be considered emergency care. [FN118] New York State takes the position that what constitutes an emergency is a factual issue that should be determined by treating doctors who must submit written certifications stating that the treatment provided is for an emergency medical condition. [FN119] Further, state officials assert that chemotherapy can cure and control cancer and thus, functions as treatment for an emergency medical condition. [FN120]

E. Further Adverse Consequences

The conflicts and cases described above demonstrate the negative consequences that result from the failure to define an emergency medical condition in the context of the realities of health care. However, there are additional adverse and detrimental effects that result. For instance, the discourse regarding the term’s meaning takes time away from actually responding to medical conditions. Moreover, it puts medical judgment and good medical practice at odds with the applicable legal standard. Consequently, medical providers cannot meet their ethical obligations nor act in accord with the standard required to avoid medical malpractice if the law compels them to engage in the “Russian roulette” approach to treatment by consistently withdrawing treatment until a patient reaches a crisis level or discharging a patient without an appropriate treatment plan.

Hospitals and doctors are obligated to pursue certain courses of action. To illustrate, hospitals must have adequate discharge plans for patients to meet legal and accreditation standards. [FN121] Physicians have a duty of continuous care and can be liable for patient abandonment or lack of due diligence in caring for a patient. [FN122] The duty of continued care is not dependent on the patient’s ability to pay for the care. [FN123] Further, the duty of continued care may be breached by premature discharge from a hospital or termination of treatment. [FN124] Once a physician undertakes treatment, ordinary skill and care is necessary to determine when to discontinue treatment. [FN125] Thus, it is imperative that physicians maintain the ability to determine the type of care needed by their patients.

As illustrated above, the current healthcare system fails to provide adequate treatment for many patients. This egregious condition of the system is further negatively impacted when noncitizens are added to the equation. For example, limiting health care for noncitizens to emergencies leads to inappropriate and more costly care in addition to the unnecessary escalation of diseases and conditions to dangerous levels. While emergency care is most often provided in hospitals, medical care can be less costly when patients are treated at an earlier stage of an illness or condition in an outpatient setting. [FN126] In situations where emergency care is unavoidable, a patient is often admitted to the hospital for continuation of acute care. Acute care facilities are designed to provide limited care and therefore seek to transfer patients to other, more appropriate treatment facilities or wards when there is a need for continuation of health care. However, medical providers cannot release patients until they are placed in a setting appropriate to their health care needs. [FN127] Lack of access to alternative appropriate care leads to inappropriate and more costly continuation of acute care. This results in inefficient use of scarce medical resources and subjects patients to unnecessary health risks in acute care facilities, such as infections. [FN128] This then results in additional illnesses, with their attendant costs. [FN129]

IV. Restrictions on Immigrant Access to Health Care Undermine Public Health

Goals

The public health consequences of the restrictions on noncitizens’ health care access raise public health concerns. Contagious disease control is one of the primary concerns of the field of public health. [FN130] However, this objective is undermined when restrictions on access limit immunization, prevent early detection and diagnosis, and impede the control of contagion through appropriate isolation and quarantine. [FN131] Restrictions on health care access for noncitizens also undermine the essential public health goals of diminishing infant mortality and morbidity, promoting child health, and effectively managing chronic disease.

A. Restrictions on Alien Eligibility for Health Care Undermine Contagious Disease Control

Federal law allows public health programs to immunize and treat immigrants for contagious diseases. [FN132] However, because the federal programs are limited in scope, many individuals must rely instead on immunization through private and not-for-profit providers that rely on public and private health insurance. [FN133] If noncitizens are precluded from  that insurance, their access to care is limited. Additionally, symptoms of contagious disease often go undetected until the individual is tested and diagnosed through a medical care provider.

1. Restrictions Undermine Prevention Through Immunization

The need of the United States to maintain high immunization rates creates a public health concern. [FN134] The infectious agents of vaccine or toxoid-preventable diseases have not yet been eradicated. Thus, any decline in immunization rates can be expected to increase the risk of new outbreaks of these diseases, resulting in an increase in unnecessary disability and deaths.

Health care access, particularly for children, is important in keeping immunization rates high because children are particularly vulnerable to diseases such as measles, mumps, and diphtheria. [FN135] Further, they frequently interact with other children in playgrounds and schools. While providing programs which focus exclusively on immunization may be helpful to some, a well child program provided through routine health care access is most important to assuring that children receive recommended vaccinations over time, thereby protecting not only their health but the public’s health as well. [FN136] Immunization for children depends on the ability of their parents or other caretakers to obtain health care, but the restrictions on health care access lead to confusion and fear in immigrant communities, discouraging parents from obtaining needed health care for their children. [FN137]

Although immunization for children is of the utmost importance, the immigrant population as a whole is in dire need of immunization. Immunization of adults is also a high priority because many immigrants come from countries in which they were not immunized. [FN138] Adults need access to health care to be assessed for and provided with necessary immunizations. Further, immunization for women in childbearing years is critical; not only for their health, but also for the health of the children they bear. [FN139] If the system is structured to address the immunization needs of immigrants thereby protecting those individuals from contagious diseases, then the risk to the general population of becoming infected is minimized.

Vaccinations for influenza are important to addressing public health concerns, because influenza epidemics occur almost annually. [FN140] During severe outbreaks, influenza has been associated with thousands of deaths in the United States. [FN141] The vaccine available is not always effective–it might not have a similarity to the influenza strain that attacks the public. [FN142] However, the vaccine is still the most effective means to diminish the disease and protect the public health. [FN143] The Centers for Disease Control (“CDC”) estimates that a moderately severe influenza pandemic could cause between 89,000 and 207,000 deaths and cost $71 to $166 billion. [FN144] Thus, access to vaccination for influenza for individuals is important for the health of the public.

2. Restrictions Undermine Efforts to Prevent Spread of Disease Through Early Detection and Diagnosis

Another important element of communicable disease control is the early detection and treatment of contagious diseases, such as SARS, TB, influenza, hepatitis, and venereal disease. For such diseases, access to primary care is essential to contain the risk of contagion for the larger community. These diseases may be asymptomatic and can only be detected through primary care screenings, particularly sexually transmitted diseases. [FN145] Moreover, contagious diseases may have common symptoms that require careful medical screening to assess. [FN146] Influenza is an example. Influenza, or the “flu”, is transmitted by respiratory secretions, direct contact, and contact with infected surfaces and objects. [FN147] Its symptoms and severity vary; they can be non-specific and include fever, chills, cough, and headache. [FN148] The challenge to those in public health is that the “flu” may be minor or it may be caused by a new respiratory pathogen that can  lead to an epidemic if not detected and controlled. [FN149] With proper primary care, these diseases can be treated during their early stages, thereby reducing, containing, and eliminating their risks.

3. Restrictions on Noncitizen Access to Health Care Particularly Undermine the Effort to Limit and Control TB, Especially Drug-Resistant Strains

TB is a serious, worldwide contagious disease. [FN150] TB has the potential to do great harm as it is spread from person to person through the air. [FN151] Once an individual is infected, the disease usually affects the lungs but also can affect other parts of the body. [FN152] It is a serious condition that can lead to death, but can be controlled with proper diagnosis and treatment. [FN153] Persons who become infected can have a latent or an active condition. [FN154]

Control of TB necessitates screening. Screening is especially important for at-risk groups, which include foreign-born persons. Treatment of latent TB is recommended to decrease the risk of the development of active TB. [FN155] However, active TB can also be treated. [FN156] A fully administered drug treatment results in cure rates of 95%, but because treatment is specific and sometimes lengthy, it must be supervised and facilitated by a healthcare worker. [FN157] While TB has been on the decline in the United States, it continues to increase in foreign-born persons. [FN158] In the United States in 2006, the number of TB cases among foreign-born persons increased. The TB rate in foreign-born persons in the United States in 2006 was 9.5 times greater than that of native-born *196 persons. [FN159] These numbers illustrate that it is crucial for noncitizens to have access to screening.

Elimination of TB is an important public health goal. [FN160] In the 1960’s and 1970’s, declining TB rates in the United States led to a dismantling of prevention and treatment programs. [FN161] The consequence was increased TB infection rates with drug-resistant strains emerging. [FN162] It was estimated that the monetary costs of losing control of TB exceeded one billion dollars in New York City alone. [FN163]

Of particular current concern is the control of multidrug-resistant and extensively drug-resistant TB, [FN164] which are significantly more difficult to treat. Others can become infected by breathing in the air containing these TB germs. [FN165] Multidrug-resistant TB disproportionately affects foreign born persons. They accounted for 81.5% of these cases in 2005. [FN166] From 2000-2006, 73% of the extensively drug-resistant TB cases occurred in foreign-born persons. [FN167]

Control of multidrug-resistant TB first requires appropriate testing and screening. The treatment of the disease requires appropriate medication and monitoring to assure that the therapy is completed. [FN168] Access to health care for prevention, screening, early diagnoses, and treatment are necessary to prevent the increase of drug-resistant TB and the associated costs. Drug-resistant TB also occurs in patients with active TB who are initially treated with medication, but do not get their full course of treatment. [FN169] When drug-resistant TB develops, the treatment required is much more extensive and expensive. Treatment for multidrug-resistant TB requires a minimum of eighteen to twenty-*197 four months; in-patient costs for someone with extensively drug-resistant TB can be $600,000. [FN170]

Providing health care access to noncitizens is therefore important in meeting the public health goal of controlling and hopefully eliminating this disease. While treatment programs are targeted to help treat and curtail the spread of TB, general health care access is essential. As with many diseases, TB presents with common symptoms such as a cough and fatigue at the early stages when it is easiest to treat and contagion can be best controlled. [FN171]

4. Restrictions Undermine the Ability to Control Contagion Through Appropriate Isolation and Quarantine

The CDC has recognized that controlling contagion through isolation and quarantine ultimately depends on the cooperation of those who are infected. [FN172] However, the lack of health care access and the immigration consequences of seeking medical care are significant barriers to access. A recent case involving an Atlanta teen illustrates this concept. In this instance, the local public health authorities discovered that a young Mexican immigrant had a variation of drug-resistant TB. [FN173] Instead of treating the young man and his family and friends in an appropriate outpatient or inpatient setting, the authorities incarcerated him and contacted the immigration authorities. [FN174] These actions undermined cooperation by the terrified young man and his family. Instead of promoting the public health by eliciting cooperation, threats of incarceration and deportation undermine it. There can be no realistic expectation that a noncitizen will come forward for a diagnosis and cooperate in the treatment of a serious contagious disease when the consequences of coming forward are being jailed and reported to immigration authorities.

5. Exclusion of Some Noncitizens from Health Care Programs Limits the Ability of the Government and the Healthcare System to Respond to Public Health Emergencies

There is a public health concern about the potential of widespread pandemic in addition to concerns about contagious disease control for individuals and  population pockets. For example, many are concerned about a potential flu pandemic. [FN175] A potential flu pandemic and other public health emergencies raise concerns about whether the American healthcare system is prepared for public health emergencies. [FN176] Healthcare systems that provide access to early screening and diagnosis for potential public health threats are essential for effective management of an emergency. [FN177]

The potential for pandemic is illustrated by SARS, a highly contagious new strain of viral pneumonia for which there is no vaccine. [FN178] Its symptoms are common such as fever and fatigue. [FN179] Preventing a disease like SARS from becoming a pandemic depends on individuals’ access to health care for early diagnosis and treatment. [FN180] SARS, like other highly contagious diseases, is controlled by rapid detection, contact investigation, and quarantine. [FN181] An adequate response to a public health emergency, especially a pandemic, requires immediate health care access for the affected population as a whole, but particularly for vulnerable populations. Access not only protects particular populations but prevents spread of contagion to the larger population. [FN182] If a noncitizen population is denied health care access, rapid detection and control of a highly contagious disease will be undermined.

B. Restrictions on Alien Eligibility for Health Care Undermine Diminishment of Infant and Mother Mortality and Morbidity

Improving the health of women and children is an important public health objective as indicated by its inclusion in the HHS’s Healthy People 2010 goals, a set of health objectives for the nation. [FN183] Medicaid coverage *199 of pregnant women was expanded to meet the public health goal of promoting better birth outcomes. [FN184] The provision of prenatal health care is also economically sensible–money spent on relatively inexpensive prenatal care prevents much more expensive neonatal care. [FN185] The receipt of adequate prenatal care thus contains health care costs by preventing conditions that require expensive treatment. Prenatal care can also reduce the costs for future medical care, special schooling, and social services by ensuring that infants are healthy.

Women comprise 55% of the legal permanent residents entering the United States and an increasing number of those labeled as unauthorized. [FN186] Moreover, female immigrants tend to be young adults and thus of child-bearing age. [FN187] The foreign-born population is 49.7% female, and among foreign-born females ages fifteen to fifty, 7.1% gave birth between 2005 and 2006. [FN188] Therefore, women’s health, and particularly pregnancy-related health, is important. [FN189] The children born to noncitizens in the United States are United States citizens under the Fourteenth Amendment to the U.S. Constitution. [FN190] Thus, denial of prenatal health care to noncitizens has serious negative consequences for their citizen children. [FN191]

A study reported in the American Journal of Obstetrics and Gynecology demonstrated the cost effectiveness of prenatal health care for undocumented women. [FN192] It found that without prenatal healthcare, undocumented women were four times more likely to have low birth weight babies and seven times more likely to have premature babies. [FN193]  Further, for each dollar spent on prenatal care, three dollars were saved in the short term and four dollars for longer term costs of medical care. [FN194]

However, provision of pre-natal health care is not covered by Medicaid for an unqualified alien. [FN195] It is also not available to legal permanent residents for five years from entry into the United States. [FN196] The Second Circuit held that Medicaid coverage for pre-natal health care of noncitizen women, whose unborn children will be citizens, may be properly denied under the Constitution. [FN197]

In spite of this court holding, a controversial interpretation of SCHIP allows the provision of health care to pertain to “a child from the time of conception,” thereby allowing certain limited care to be provided to the woman carrying the fetus regardless of the mother’s citizenship status. [FN198] Some states have implemented this interpretation, but many others have not. [FN199] Some advocates and commentators viewed this interpretation as limiting reproductive health choices by imposing legal recognition of fetuses. [FN200] Other scholars have expressed concern about the ethical and practical problems with providing pre-natal but not post-partum care, thus undermining the health of the mother and the infant. [FN201]

HHS provides funding to local health departments to provide prenatal services, for which non-qualified aliens are eligible. [FN202] However, because of the Medicaid eligibility restrictions on non-qualified aliens, there are uncompensated costs which impose a strain on state and local governments. [FN203] The public health goal of providing prenatal health care to promote infant health and save neonatal costs is thus undermined by the lack of consistent prenatal health care for noncitizen pregnant women.

C. Restrictions on Alien Eligibility for Health Care Undermine Healthy Child Care

Another important indicator of public health is the health of children. Health care provided to children is often focused on preventative care, assuring the health of children at a cost much less than the consequences of childhood illness. Further, another consequence of denying primary and preventive child care is the limitations on the social and economic contributions these children may make in the future. [FN204]

Uninsured children have less access to health care and are less likely to have a regular source of primary care. [FN205] They are less likely to have received medical care for common childhood diseases such as ear infection and asthma. [FN206] Uninsured children often receive no care or late care. [FN207] Moreover, children are at higher risk for (1) hospitalization for conditions that should be treated in an outpatient setting and (2) missed diagnosis of serious conditions. [FN208] Conditions such as asthma, anemia, and otitis media can be prevented or cured, but if not addressed, affect a child’s life-long functioning. [FN209] Immigrant children have a high risk of being uninsured and face additional barriers to appropriate health care. [FN210] Uninsured citizen children of immigrants are less likely to see a doctor. [FN211]

Medicaid and SCHIP programs increased access to health care for children in recognition of the important public health objective of improving the health of children. [FN212] However, the programs restrict the eligibility of children who are legal permanent residents for five years from date of their entry. Five years is a particularly long time for children, because the limitations deny health care during crucial developmental phases. [FN213] Further, other children who are not considered “qualified” are denied health care access. Medicaid coverage makes a difference in health care access. Forty-three percent of uninsured immigrant children had not seen a doctor in a year, while only 16% of those with Medicaid had not. [FN214]

D. Restrictions on Noncitizens’ Health Care Access Limit the Ability to Coordinate Chronic Disease Care

Lack of medical care access for immigrants makes chronic disease care more difficult and costly due to delayed detection and treatment or inappropriate treatment. This is of particular concern with regard to common chronic diseases such as diabetes, asthma, and heart disease. The lack of access to primary or preventive care means that certain diseases or conditions will go undetected and untreated until they have advanced to more serious stages. [FN215] The cost of treating the disease or condition will almost invariably be much higher than treating the disease or condition at an earlier, more appropriate state. [FN216]

According to one study, lack of health care access may lead to decreased use of health care services for diabetes management, asthma control, reduction of cardiovascular disease risk, and cancer prevention. [FN217] Appropriate medicine and health promoting practices obtained through primary health care can help avoid painful and harsh consequences of disease. [FN218]

Unnecessary hospitalizations for chronic conditions come at a high price by imposing unnecessary costs and inefficiently utilizing scarce medical care resources. The price of maintaining patients in acute hospitals is considerably higher than the cost of more appropriate lower levels of and approaches to care. [FN219] The community pays these costs through increased tax dollars, hospital bills, or health insurance rates. [FN220] Moreover, inappropriate hospitalization may subject patients to unnecessary health risks, and may therefore create additional illnesses that will cost more to treat.

V. Restrictions on Immigrant Access to Health Care Limit Health Care

Access of Eligible Citizens and Immigrants

A. Denial of Health Care to Noncitizen Family Members Undermines the Health of Citizen and Legal Immigrant Family Members

Immigrants are integrated in society even down to the level of the nuclear family. It is not uncommon for a grandparent, a spouse, or a sibling in a family to be a noncitizen while the other family members are citizens. An analysis of the noncitizen population specifically looked at families and children associated with the “unauthorized” population. The study reported that 6.6 million families included a head of the household or spouse who was “unauthorized” and labeled these families as “unauthorized families.” [FN221] Thirty percent of these families had United States citizen children (1.96 million families). [FN222] The study labeled these families as “mixed status” families, which encompassed five out of six “unauthorized” families with children. [FN223] Twenty-three percent (1.5 million families) had only citizen children, while seven percent included citizen and unauthorized children (460,000 families). [FN224] A total of 3.1 million citizen children lived in families in which the head of household or spouse was “unauthorized.” [FN225]

Limitations on health care access to the noncitizen family members have a direct negative effect on the citizen family members. Their health is undermined if the health of a close family member is threatened. The citizen children of immigrants are particularly at risk for illness if their parents do not receive proper health care. [FN226]

Moreover, fears about contact with authorities deter noncitizens from obtaining health care for themselves or for their citizen relatives. This fear is rooted in two concerns. First, immigrants frequently fear that contact with any authority will increase the risk of being reported to immigration authorities, who can force removal from the country. [FN227] Second, immigrants often believe that obtaining medical care may undermine their ability to qualify for permanent resident status or naturalization. [FN228]

B. Documentation Requirements to Limit Alien Eligibility Result in Denials of Needed Care to Eligible Citizens

Even individual citizens unrelated to immigrants are hurt by eligibility restrictions based on alien status. If citizenship is an eligibility criterion, then citizens can be required to prove their status and demonstrate that they are not ineligible aliens. Recent changes in Medicaid eligibility require that citizens produce certain documents to prove both their citizenship and their identity. [FN229] This legislation was purportedly for the purpose of preventing undocumented immigrants from obtaining Medicaid. [FN230] However, those most harmed by the rule are eligible citizens, particularly citizen children. [FN231]

Under the Deficit Reduction Act, individuals who claim U.S. citizenship, but are unable to produce acceptable documentation of both their citizenship and their identity, are denied Medicaid benefits. [FN232] Citizenship documentation to prove citizenship includes passports and birth certificates, while identity documents include driver’s licenses, school identification cards, and other special documents. [FN233] Congress enacted the law with the objective of preventing noncitizens from making false claims of citizenship. [FN234] However, there was no empirical support for the proposition that individuals were making false claims of citizenship to gain Medicaid eligibility. [FN235] Many citizens, particularly those poor enough to qualify for Medicaid, do not have or have difficulty obtaining the requisite documentation. [FN236]

The act exempted children in foster care, individuals enrolled in Medicare, and individuals who receive Supplemental Security Income (“SSI”) or Social Security Disability from the proof of citizenship requirements. [FN237] Yet, this still left large numbers of Medicaid-eligible citizens with a proof requirement they could not meet. As a consequence, citizens face difficulties and delays in obtaining health care for themselves and their children, health care providers confront an increase in uncompensated care, and states bear the financial and administrative burden of determining citizenship status. [FN238]

VI. Restrictions on Immigrant Access to Health Care Undermine the

Functioning of Healthcare System as a Whole

A. Determining Eligible Statuses Involves Complicated Analysis that is Inappropriate for Healthcare Personnel and Diverts Resources from Provision of Service

The process of determining immigration status is complicated. Labeling noncitizens as legal or illegal or undocumented does not accurately reflect the complex realties of immigration status, and the determinations that immigration authorities make that allow noncitizens to reside and work in the United States. Understanding those realities involves a sophisticated knowledge of immigration law and policy. This level of immigration expertise should not be expected from healthcare providers or administrators. Moreover, determining eligibility on the basis of immigration status requires time and resources that are better spent by healthcare professionals in providing care.

The intricacies of immigration status are reflected in the categories of “qualified” aliens currently recognized as eligible for Medicaid and in the prior eligibility criterion of permanently residing under color of law. “Qualified” alien includes persons in classifications that only an individual well versed in immigration law would recognize, including asylee, refugee, parolee, conditional entrant, Cuban/Haitian entrant, and those granted withholding of removal. [FN239] HHS previously classified numerous categories of aliens as “permanently residing under color of law,” an understanding of which also required an in depth knowledge of immigration law and policy. For example, some of the categories of immigrants permanently residing under color of law included: aliens with indefinite stays of deportations or indefinite voluntary departure; aliens for whom immediate relative petitions had been approved and families covered by those petitions; and aliens who had filed applications for adjustments of status, registry-eligible aliens, and aliens granted suspension of deportation, etc. [FN240]

Further, when eligibility rules involve immigration status, even supposed experts have difficulty making the correct determinations. As a result, health agencies and other entities have difficulty setting up systems to effectuate accurate determinations. Demonstrating this difficulty, New York City and State were found by a federal court to have erroneously denied access to a class of immigrant applicants entitled to Medicaid. [FN241] *206 The class included persons in deep need of health care, abused spouses, and children. [FN242] While the court determined that the city did not intentionally deny benefits to this population, it nonetheless granted a preliminary injunction. [FN243] The court concluded that the defendants denied benefits because the employees making determinations did not understand the eligibility rules or know which documents were necessary for verification of status. [FN244] The court found that the training materials and manuals were inadequate, the computer system did not contain the necessary fields, and the notices of determination did not explain the eligibility of individual members of households whose members were in different immigration classifications. [FN245] The state, the city, not-for-profit organizations, and the court devoted significant time and resources to assure accurate eligibility determinations. Those resources would have been better spent providing health care access for abused children and spouses in general, thus addressing domestic violence, a major public health concern.

B. Restrictions on Noncitizen Health Care Access Shift Costs to Local Government and Not-For-Profit Entities That Have No Expertise in or Control Over Immigration Policy From the Federal Government

The economic benefits of immigration generally flow to the federal government, but the costs of new and increased populations are often absorbed by states and localities as they are primarily responsible for their residents’ health and welfare. Federal law and practice inhibit states’ ability to obtain federal financial contributions for immigrant health care through Medicaid and SCHIP. [FN246] The controversies about the definition of emergency care described above illustrate this idea; promised federal funds for state Medicaid programs have been revoked because the federal authorities disagreed with the states on the definition of an emergency medical condition. [FN247]

State and federal governments have clashed over health care access for noncitizens. On a policy level, states and localities can argue that health care for noncitizens is ultimately a federal responsibility because the federal government can decide which noncitizens can enter and stay in the country. Within the current Medicaid system, states contend that the federal government should pay a share of healthcare costs for noncitizens and should not impede state and local public health *207 objectives by forcing state and localities to solely bear the expense of providing for noncitizens. [FN248]

Examples from New York, Texas, and Colorado illustrate some of the conflicts between federal standards and state and local requirements. In New York, for example, an interpretation of federal legislative restrictions on noncitizen eligibility for Medicaid by the Second Circuit resulted in the dissolution of a long-standing injunction in that state, which had protected access to pre-natal health care and required federal funding regardless of the immigration status of pregnant women. [FN249] At about the same time, the New York Court of Appeals interpreted the state and federal constitutions to require state medical assistance for several categories of noncitizens. [FN250] The State of New York therefore had an obligation to provide medical care without receiving federal contributions.

In a Texas community, doctors included all residents in a preventive medical program designed to improve public health and limit emergency room costs. [FN251] The State Attorney General asserted that this program violated federal law because it did not restrict the access of undocumented aliens. [FN252] Legal scholars, however, asserted that the federal law violated the Tenth Amendment. [FN253] The doctors argued that restrictions would undermine the public health and fiscal objectives of the program. [FN254]

The State of Colorado responded to the pressure of state budget restrictions for Medicaid by excluding all immigrants from the Medicaid program, even those allowed to be included by federal law. [FN255] However, in 2005, the Colorado legislature passed a bill that restored Medicaid eligibility for several categories of immigrants. [FN256]

Lifting the restrictions based on noncitizen status in the current Medicaid/SCHIP system would relieve states and localities of some burdens and would enable them to obtain federal financial contribution for *208 the health services they provide. In the broader context of health care reform, inclusion of noncitizens is necessary to avoid similar federal-state conflicts.

Further, limitations on immigrants’ access to health care also make the job of healthcare providers much more difficult. It is very frustrating for people whose life work is to heal and care for the sick to be blocked in affording appropriate and timely health care. Eventually these healthcare providers have to deal with the medical consequences of barriers to access to health care. Because of these barriers, the resulting medical conditions are then much more severe and difficult to treat.

VII. Denial of Health Care to Noncitizens in the Context of the Deficiencies in the American Health Care System

The consequences of the denial of health care access for noncitizens need to be examined in the context of the deficiencies of the overall American healthcare system. The difficulties with the current American healthcare system would continue to exist even if the noncitizen population disappeared. The minority noncitizen population has not caused the system’s problems. Yet, the exclusion of the members of this population contributes to and exacerbates the negative public health and health system consequences as described above.

The problems of the American healthcare system are massive. There are significant negative consequences associated with the large number of uninsured and underinsured people. [FN257] The Institute of Medicine undertook an exhaustive and extensive multi-year, multi-volume study of the consequences of uninsurance in the United States. It concluded that the lack of health insurance for millions of Americans had serious negative consequences and economic costs for the uninsured, their families, the communities in which they live, and the country as a whole. [FN258] Uninsured children and adults do not receive the care they need and suffer from poor health. [FN259] One uninsured family member can impose a risk to the health of the whole family. [FN260] A high uninsured rate can affect the overall health status of a community and undermine its healthcare institutions and providers. [FN261]

As reported by the Institute of Medicine, when people lack health coverage, society’s costs are substantial. [FN262] The uninsured lose their health and die prematurely. Uninsured children lose the opportunity for normal development and educational achievement when preventable health conditions go untreated. Families lose peace of mind because they live with the uncertainty and anxiety of the medical and financial consequences of serious illness or injury. Communities are at risk of losing health care capacity because high rates of uninsurance result in hospitals reducing services, health providers moving out of the community, and cuts in public health programs like communicable disease surveillance. These consequences can affect everyone, and the economic vitality of the country is diminished by productivity lost as a result of the poorer health and premature death or disability of uninsured workers. Much of the societal cost is in the form of poorer health for the uninsured, because they frequently receive too little care, too late. [FN263]

The relatively small size of the noncitizen population precludes any notion that difficulties within the American healthcare system are caused by the noncitizen population. The American population in 2005 was almost three hundred million. [FN264] According to the Congressional Research Service, the census data as of 2005 revealed that the foreign-born comprise 12.4% of the U.S. population. [FN265] However, 34.7% of the foreign-born population were naturalized citizens. [FN266] Thus, naturalized citizens comprised 4.3 % of the U.S. population while the total noncitizen population comprised 8.1%, [FN267] a significant but not overwhelming minority. Further, the majority of the uninsured are citizens. In 2006, U.S. citizens constituted 78% of the non-elderly uninsured while noncitizens were 22%. [FN268] Additionally, the growth in the number of uninsured from 2000 to 2006 occurred predominately among citizens. [FN269]

Moreover, regardless of whether they have health insurance, immigrants overall have much lower per capita healthcare expenditures than native-born Americans. [FN270] Recent analyses indicate that they contribute more to the economy in taxes than they receive in public benefits. [FN271] Accusations that immigrants use healthcare services for which they are not eligible, or use them more often than the average person, are based on uninformed assumptions that are rarely substantiated. [FN272] Healthcare expenditures in the United States are lower for immigrants than for native-born residents, and immigrants use less health care services overall than citizens. [FN273]

Yet, lack of health insurance coverage is a serious issue for noncitizen populations, particularly those with lower incomes who often also have an irregular immigration status. In 2001, 60% of low-income noncitizens did not have health insurance and only 13% received Medicaid. [FN274] This is in contrast to 28% of low-income citizens who were uninsured and 30% that had Medicaid. [FN275]

After its exhaustive study, the Institute of Medicine concluded that to achieve the goals of health care access reform, universal coverage is essential. [FN276] The Institute of Medicine specifically researched and analyzed the issue of inclusion of noncitizens. It concluded that the “analysis of the extensive body of literature concerning access to health services and health outcomes provides no evidence to support the notion that coverage should be limited based on citizenship or immigration status.” [FN277] Further, the Institute of Medicine found that it is advantageous to provide coverage to immigrants. [FN278] Overall, the value of providing health coverage across the U.S. population is greater than the additional cost of services to those who lack coverage. [FN279]

Further, restriction on health care access for noncitizens as a means of immigration control is misguided. Studies indicate that health care is not a major motivating factor in migration decisions. Immigrants come to the United States for family, employment, and to seek refuge from persecution and disaster. [FN280] The objective of improving public health through expanding access has been undermined by the attempt to regulate *211 immigration through restricting access to health programs based on immigration status. There is no indication that the goal of immigration restriction is being met. The public health and health system objectives that are the main focus of Medicaid, SCHIP, and similar programs need to be predominant. Germs, accidents, and disease do not pick their victims based on citizenship status. A community’s health depends on the health status of each of its members.

Ultimately, as concluded by the Institute of Medicine, for health reform to be effective, everyone residing in the United States including noncitizens must be included. [FN281] Yet providing health care for noncitizens particularly the undocumented has been a controversial issue. If the goal of coverage for all those residing in the United States is not politically achievable, then an alternative that at least mitigates the adverse societal consequences should be considered. Any health reform proposal must provide full eligibility for legal permanent residents and other noncitizens permanently residing in the United States under color of law. If the federal government does not pay all or part of the cost of care for these long-term residents, the states and localities will have to bear the fiscal and public health consequences. While coverage for other noncitizens residing in the United States would be best, at the very least, healthcare access must be provided without regard to immigration status for services that have major public health consequences and fiscal implications. These include contagious disease prevention, detection and treatment; pre-natal health care; preventive health care for children; treatment for emergency conditions and outpatient treatment to avoid emergency hospitalization. Further, the full medical course of treatment must be provided in response to an emergent situation or illness to avoid a “Russian roulette” approach to health care.

VIII. Conclusion

The consequences of denying health care access to immigrants are one aspect of the massive challenges posed by the American healthcare system in which a significant segment of the total population is uninsured. Yet, negative consequences are exacerbated when noncitizens are involved and have an impact on the public health of the society as a whole. Providing health care access for noncitizens would promote public health goals and assist in implementing a more rational and cost-effective healthcare system.

Restrictions on health care access are not a viable means to implement immigration policy. Immigration policies are most effectively implemented directly, through measures that affect the major motivating factors for migration: employment, family reunification, and seeking refuge. Any healthcare system reforms need to include provision of care to the noncitizen population if the reforms are to protect the public health and provide a rational, humane, and cost-effective approach to health care delivery. Any health care reform that does not take the noncitizen population into account will not be complete and will result in the continuation of serious adverse public health and healthcare system consequences.

 

[FNa1]. Professor, City University School of Law. Many thanks for the comments of Ruthann Robson and Andrea McArdle, the research assistance of Johan Bysainnthe, and the typing assistance of Rosa Navarra.

 

[FN1]. See Jennifer Steinhauer, California Plan for Health Care Would Cover All, N.Y. Times, Jan. 9, 2007, at Al (discussing proposals by state politicians). See also Henry J. Kaiser Family Found., 2008 Presidential Candidate Health Care Proposals: Side-by-Side Summary (2008), http:// www.health08.org/sidebyside.cfm [hereinafter 2008 Presidential Candidate Health Care Proposals] (explaining the proposals of various presidential candidates).

 

[FN2]. See Barry R. Furrow, Symposium: The Politics of Health Law: Access to Health Care and Political Ideology: Wouldn’t You Rather Have a Pony?, 29 W. New Eng. L. Rev. 405, 406-07 (2007) [hereinafter The Politics of Health Law] (discussing the problem of healthcare costs for uninsured and underinsured individuals).

 

[FN3]. See Dr. Juan Hernandez, Introduction to Many Voices, One Dream: A Collection of Insights and Recommendations for Achieving Meaningful Immigration Reform 1, 1-2 (2007), available at http:// www.reforminstitute.org/DetailPublications.aspx?pid=130&cid=7 [hereinafter Many Voices] (highlighting the need for immigration reform).

 

[FN4]. See Douglas Massey, America’s Unfolding Human Rights Crisis, in Many Voices, supra note 3, at 6. See also Comprehensive Immigration Reform: Government Perspectives on Immigration Statistics Before the Subcomm. on Immigration, Citizenship, Refugees, Border Security, and International Law of the H.R. Comm. on the Judiciary, 110th Cong. 42 (2007) (testimony of Ruth Ellen Wasem, Specialist in Immigration Policy, Congressional Research Service), available at http://judicary.house.gov/media/pdfs/Wasem070606.pdf [hereinafter Wasem Testimony] (noting that one-third of the thirty-six million foreign-born residents are unauthorized residents and legal temporary residents).

 

[FN5]. See 2008 Presidential Candidate Health Care Proposals, supra note 1.

 

[FN6]. See The Politics of Health Law, supra note 2, at 407-09.

 

[FN7]. See id. at 409-10.

 

[FN8]. See id. at 407-09. See also Robin A. Cohen et al., Ctr. for Disease Control, Health Insurance Coverage: Early Release of Estimates from the National Health Interview Survey 1-5 (2006), available at www.cdc.gov/nchs/data/nhis/earlyrelease/insur200706.pdf.

 

[FN9]. See Labor Certification for the Permanent Employment of Aliens in the United States, 72 Fed. Reg. 27,904, 27,904-05 (May 17, 2007) (to be codified at 20 C.F.R. pt. 656) (omitting healthcare coverage as a requirement in the process for U.S. employers to obtain permanent alien workers).

 

[FN10]. Social Security Act, 42 U.S.C. § 1396 (2000) (providing medical assistance to the poor, the disabled, and other needy individuals).

 

[FN11]. Nat’l Conference of State Legislatures, State Children’s Health Insurance Program, www.ncsl.org/programs/health/chiphome.htm (last visited Apr. 12, 2008) (noting that the SCHIP program targets low-income children who are not eligible for Medicaid and are uninsured).

 

[FN12]. See Henry J. Kaiser Family Found., Interaction Between Medicare and Medicaid, www.kff.org/medicare/upload/Navigating-Medicare-and-Medicaid-2005- Interaction-Between-Medicare-and-Medicaid-Section-4.pdf.

 

[FN13]. 3 Medicare and Medicaid Guide (CCH) ¶ 14,311 (2007). See also Neighborhood Legal Services, Inc., Medicaid Financial Eligibility Levels for New York (2007), available at http://www.nls.org/medichrt2007.htm (noting that Medicaid financial eligibility differs from state to state and also by family size; for example, a single person in New York State would be eligible with a monthly income of $700 or less, and a family of four would be eligible with a monthly income of $1109 or less).

 

[FN14]. See 3 Medicare and Medicaid Guide (CCH) ¶ 14,341 (2007).

 

[FN15]. See Jeffrey S. Passel, Pew Hispanic Ctr., Unauthorized Migrants: Numbers and Characteristics 26-27 (2005), available at http:// pewhispanic.org/reports/report.php?ReportID=46 (statistics regarding unauthorized individuals in lower wage occupations).

 

[FN16]. Julia Field Costich, Legislating a Public Health Nightmare: The Anti-Immigrant Provisions of the “Contract with America” Congress, 90 Ky. L.J. 1043, 1052-53 (2002) (noting that while undocumented immigrants are generally eligible for emergency Medicaid, they are ineligible for non-emergency federal public benefits under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996).

 

[FN17]. See, e.g., Nathanael J. Scheer, Keeping the Promise: Financing EMTALA’s Guarantee of Emergency Medical Care for Undocumented Aliens in Arizona, 35 Ariz. St. L.J. 1413, 1413-14 (2003) (discussing this issue as it applies to the state of Arizona).

 

[FN18]. See Costich, supra note 16, at 1052-53. See also Tanya Broder, Nat’l Immigration Law Ctr., Overview of Immigrant Eligibility for Federal Programs 4.1-4.10 (2007), http://www.nilc.org/immspbs/special/pb_issues_ overview_2007-10.pdf.

 

[FN19]. 8 U.S.C. § 1611(b)(1)(A) (2000).

 

[FN20]. See Linda C. Fentiman, The New “Fetal Protection”: The Wrong Answer to the Crisis of Inadequate Health Care for Women and Children, 84 Denv. U. L. Rev. 537, 559-563, 589-591 (2006) (noting that state-sponsored insurance was expanded to cover pre-natal care).

 

[FN21]. Janet M. Calvo, Alien Status Restrictions on Eligibility for Federally Funded Assistance Programs, 16 N.Y.U. Rev. L. & Soc. Change 395, 402 (1988) [hereinafter Alien Status Restrictions]. Under current law, Medicare is limited to legal permanent residents who have been in the Untied States for at least five years. See 8 U.S.C. § 1613(a) (2000). See also Matthews v. Diaz, 426 U.S. 67, 67 (1976) (holding that Congress may condition an alien’s eligibility for participation in a federal medical insurance program on continuous residence in the U.S. for a five-year period).

 

[FN22]. Alien Status Restrictions, supra note 21, at 412.

 

[FN23]. See id. at 412-15.

 

[FN24]. H.R. Rep. N0. 99-727, at 111 (1986).

 

[FN25]. See, e.g., Holley v. Lavine, 553 F.2d 845, 849 (2d Cir. 1977), cert. denied sub nom., Shang v. Holley, 435 U.S. 947 (1978); Berger v. Heckler, 771 F.2d 1556, 1574-75 (2d Cir. 1985).

 

[FN26]. See, e.g., Berger, 771 F.2d at 1571-75.

 

[FN27]. See 3 Medicare and Medicaid Guide (CCH) ¶ 14,341 (2007).

 

[FN28]. 8 U.S.C. §§ 1611(a), 1641(b)-(c) (2000). The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“PRWORA”) implemented the federal restrictions. States operating designated federal programs such as Medicaid are required to follow federal law to receive federal financial contributions. 8 U.S.C. §§ 1601-46 (2001). The provisions of PRWORA have been upheld by federal courts applying a rational basis review. See Kiev v. Glickman, 991 F.Supp. 1090, 1100 (D. Minn. 1998); Abreu v. Callahan, 971 F.Supp. 799, 818 (S.D.N.Y. 1997).

 

[FN29]. 8 U.S.C. § 1641(b)-(c) (2000).

 

[FN30]. 8 U.S.C. § 1613 (2000).

 

[FN31]. See 8 U.S.C. § 1183a(a) (2000 & Supp. V 2005) (sponsor deeming provisions attribute a sponsor’s income and resources to noncitizen in determining the eligibility for and amount of federal benefits, indicating that noncitizen may be barred from receiving benefits on basis of sponsor’s income and resources).

 

[FN32]. Office of the Assistant Sec’y for Planning & Evaluation, Summary of Immigrant Eligibility Restrictions Under Current Law (2004), http:// aspe.hhs.gov/hsp/immigration/restrictions-sum.htm#sec6.

 

[FN33]. 42 U.S.C. § 1396b(v)(2)(A) (2000).

 

[FN34]. For example, in 1986, Congress allowed states to enroll all pregnant women with incomes up to 100% of the federal poverty level in Medicaid. This increased the number of pregnant women eligible to receive pre- and post-natal care. See Omnibus Budget Reconciliation Act of 1986, Pub. L. No. 99-509, § 9401(b)(2), 100 Stat. 1874 (1986). See also General Accounting Office, Prenatal Care: Early Success in Enrolling Women made Eligible by Medicaid Expansions 7 (Feb. 1991), available at http://www.gao.gov/docsearch/beta.

 

[FN35]. Ian T. Hill, The Role of Medicaid and Other Government Programs in Providing Medical Care for Children and Pregnant Women, 2 No. 2 The Future of Children: U.S. Health Care for Children 134, 134-35 (Winter, 1992).

 

[FN36]. See, e.g., Neighborhood Legal Services, Inc., supra note 13.

 

[FN37]. Henry J. Kaiser Family Found., Early and Periodic Screening, Diagnostic, and Treatment Services 1 (2005), http:// www.kff.org/medicaid/upload/Early-and-Periodic-Screening-Diagnostic-and-Treatment-Services-Fact-Sheet.pdf.

 

[FN38]. Diana O. Aguilar, Using SCHIP to Offer Prenatal Care to Undocumented and Non-Qualified Immigrants in Wisconsin: The Benefits, Risks, and Shortcomings, 20 Wis. Women’s L.J. 263, 269-70 (2005).

 

[FN39]. Id.

 

[FN40]. See id. at 281-86. See also Fentiman, supra note 20, at 589-93.

 

[FN41]. 42 U.S.C. § 1395dd (2000 & Supp. IV 2004).

 

[FN42]. See Scheer, supra note 17, at 1415.

 

[FN43]. William P. Gunnar, The Fundamental Law That Shapes the United States Health Care System: Is Universal Health Care Realistic Within the Established Paradigm?, 15 Annals Health L. 151, 171 (2006); Beverly Cohen, Disentangling EMTALA from Medical Malpractice, 82 Tul. L. Rev. 645, 655 (2007); 42 C.F.R. §489.24 (2007).

 

[FN44]. Gunnar, supra note 43, at 172. See 42 U.S.C. § 1395dd(d)(1)(B) (2000 & Supp. IV 2004).

 

[FN45]. See 42 U.S.C. § 1395dd(a) (2000).

 

[FN46]. See 42 U.S.C. § 1395dd(d)(B)(i) (2000).

 

[FN47]. 42 U.S.C. § 1396b(v)(3) (2000). See also Marcela X. Berdion, The Right to Health Care in the United States: Local Answers to Global Responsibilities, 60 SMU L. Rev. 1633, 1644-48 (2007) (for a discussion of EMTALA’s limitations).

 

[FN48]. See Tianna Mayere Lee, An EMTALA Primer: The Impact of Changes in the Emergency Medicine Landscape on EMTALA Compliance and Enforcement, 13 Annals Health L. 145, 166 (2004). See also Dean M. Harris, Symposium: The Future of Medicare, Post Great Society and Post Plus Choice: Legal and Policy Issues: Beyond Beneficiaries: Using the Medicare Program to Accomplish Broader Public Goals, 60 Wash. & Lee L. Rev. 1251, 1279 (2003) (EMTALA referred to as an “unfunded mandate”).

 

[FN49]. See David Hyman, Patient Dumping on EMTALA: Past Imperfect/Future Shock, 8 Health Matrix 29, 50-53 (1998).

 

[FN50]. See generally Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Pub. L. No. 108-173, 117 Stat. 2066 (2003).

 

[FN51]. Emergency Clearance: Public Information Collection Requirements Submitted to the Office of Management and Budget (OMG), 70 Fed. Reg. 25,578 (May 13, 2005).

 

[FN52]. Ice Miller, Survey of Recent Developments in Health Law, 39 Ind. L. Rev. 1051, 1092 (2006).

 

[FN53]. See Henry J. Kaiser Family Found., Summary: Five Basic Facts on Immigrants and Their Health Care (2008), http:// www.kff.org/medicaid/upload/7761.pdf [hereinafter Five Basic Facts on Immigrants].

 

[FN54]. 42 U.S.C. § 1396b(v)(2)(A) (2000).

 

[FN55]. 8 U.S.C. § 1369(d) (2000).

 

[FN56]. See, e.g., Greenery Rehab. Group, Inc. v. Hammon, 150 F.3d 226, 231-33 (2d Cir. 1998); Szewczyk v. Dep’t of Soc. Servs., 881 A.2d 259, 265- 74 (Conn. 2005); Diaz v. Div. of Soc. Servs., 600 S.E.2d 877, 879-81 (N.C. Ct. App. 2004); Luna v. Div. of Soc. Servs., 589 S.E.2d 917, 919-25 (N.C. Ct. App. 2004); Scottsdale Healthcare, Inc. v. Ariz. Health Care Cost Containment Sys. Admin., 75 P.3d 91, 94-99 (Ariz. 2003).

 

[FN57]. See Michael McKeefery, A Call to Move Forward: Pushing Past the Unworkable Standard that Governs Undocumented Immigrants’ Access to Health Care Under Medicaid, 10 J. Health Care L. & Pol’y 391, 404 (2007).

 

[FN58]. Medicaid Program: Eligibility of Aliens for Medicaid, 55 Fed. Reg. 36,813, 36,816 (Sept. 7, 1990) (to be codified at 42 C.F.R. pts. 435, 436, and 440).

 

[FN59]. See generally id.

 

[FN60]. Id.

 

[FN61]. Id.

 

[FN62]. Id.

 

[FN63]. Medicaid Program: Eligibility of Aliens for Medicaid, 55 Fed. Reg. at 36,816.

 

[FN64]. Gaddam v. Rowe, 684 A.2d 286 (Conn. Super. Ct. 1995).

 

[FN65]. Greenery Rehab. Group, Inc. v. Hammon, 150 F.3d 226 (2d Cir. 1998).

 

[FN66]. E.g., Szewczyk v. Dep’t of Soc. Servs., 881 A.2d 259 (Conn. 2005).

 

[FN67]. Gaddam, 684 A.2d at 288.

 

[FN68]. Id. at 286.

 

[FN69]. Id. at 287.

 

[FN70]. In Crespin v. Kizer, 226 Cal. App. 3d 498, 510 (Cal. Ct. App. 1990), the court noted that the California Department of Health Services “acknowledges that in most cases renal dialysis does constitute ’emergency treatment’ for which federal financial participation is available.”

 

[FN71]. Gaddam, 684 A.2d at 288.

 

[FN72]. Id.

 

[FN73]. Mercy Healthcare Ariz., Inc. v. Ariz. Health Care Cost Containment Sys., 887 P.2d 625 (Ariz. Ct. App. 1994).

 

[FN74]. Id. at 627.

 

[FN75]. Id. at 628-29.

 

[FN76]. Id. at 629.

 

[FN77]. See Greenery Rehab. Group, Inc. v. Hammon, 150 F.3d 226, 232 (2d Cir. 1998).

 

[FN78]. Id.

 

[FN79]. Id. at 233.

 

[FN80]. Id. at 228.

 

[FN81]. Id. at 228-29.

 

[FN82]. Greenery, 150 F.3d at 230.

 

[FN83]. Id. at 232-33.

 

[FN84]. Id.

 

[FN85]. Id. at 232.

 

[FN86]. Id.

 

[FN87]. Quiceno v. Dep’t of Soc. Servs., 728 A.2d 553, 555 (Conn. Super. Ct. 1999).

 

[FN88]. Id.

 

[FN89]. Scottsdale Healthcare, Inc. v. Ariz. Health Care Cost Containment Sys. Admin., 75 P.3d 91 (Ariz. 2003).

 

[FN90]. Id. at 96-97.

 

[FN91]. Id. at 97.

 

[FN92]. Id. at 98.

 

[FN93]. Id. at 97.

 

[FN94]. Scottsdale, 75 P.3d at 97.

 

[FN95]. Id.

 

[FN96]. Id.

 

[FN97]. Id.

 

[FN98]. Id.

 

[FN99]. Szewczyk v. Dep’t of Soc. Servs., 881 A.2d 259, 261 (Conn. 2005).

 

[FN100]. Id. at 262.

 

[FN101]. Id.

 

[FN102]. Id. at 272.

 

[FN103]. Id. at 262.

 

[FN104]. Luna v. Div. of Soc. Servs., 589 S.E.2d 917, 922 (N.C. Ct. App. 2004).

 

[FN105]. Id. at 918-19.

 

[FN106]. Id. at 919.

 

[FN107]. Id. at 921.

 

[FN108]. Id. at 924-25.

 

[FN109]. Diaz v. Div. of Soc. Servs., 628 S.E. 2d 1, 5 (N.C. 2006).

 

[FN110]. Id.

 

[FN111]. Diaz v. Div. of Soc. Servs., 600 S.E.2d 877 (N.C. Ct. App. 2004).

 

[FN112]. See infra notes 113-120 and accompanying text.

 

[FN113]. See Barry Furrow, Forcing Rescue: The Landscape of Health Care Provides Obligations to Treat Patients, 3 Health Matrix 31, 43-46 (1993) [hereinafter The Landscape of Health Care].

 

[FN114]. Gunnar, supra note 43, at 166 (noting that states reimburse the health care services covered by Medicaid).

 

[FN115]. See Sarah Kershaw, U.S. Rule Limits Emergency Care for Immigrants, N.Y. Times, Sept. 22, 2007, at A1.

 

[FN116]. Id.

 

[FN117]. Id.

 

[FN118]. Id.

 

[FN119]. Id.

 

[FN120]. Kershaw, supra note 115, at A1.

 

[FN121]. Olga Cotera-Perez-Perez, Discharge Planning in Acute and Long Term Facilities, 26 J. Legal Med..85, 85-86 (2005).

 

[FN122]. See The Landscape of Health Care, supra note 113, at 43-45; Paula Berg, Judicial Enforcement of Covenants Not to Compete Between Physicians, 45 Rutgers L. Rev. 1, 45 (1992).

 

[FN123]. The Landscape of Health Care, supra note 113, at 45.

 

[FN124]. Id. at 43-45.

 

[FN125]. Id. at 55.

 

[FN126]. Inst. of Med., Future of Emergency Care: Hospital Based Emergency Care at the Breaking Point 2-3 (Nat’l Acad. of Sciences 2007), available at http://www.nap.edu/catalog/11621.html.

 

[FN127]. The Landscape of Health Care, supra note 113, at 43-44.

 

[FN128]. See infra note 96.

 

[FN129]. See Inst. of Med., A Shared Destiny: Community Effects of Uninsurance (Nat’l Acad. of Sciences 2003), available at http:// books.nap.edu/openbook/0309087260/html/index.html [hereinafter A Shared Destiny]. See also Inst. of Med., Care Without Coverage Too Little, Too Late (Nat’l Acad. of Sciences 2002), available at http:// www.nap.edu/books/0309083435/html/.

 

[FN130]. See infra note 128.

 

[FN131]. See infra notes 132-174.

 

[FN132]. See 8 U.S.C.A. § 1611(b)(A)(C) (2000). See also Mee Moua et al., Immigrant Health: Legal Tools/Legal Barriers, 30 J.L. Med. & Ethics 189, 192 (2002).

 

[FN133]. See The Politics of Health Law, supra note 2. See also Costich, supra note 16.

 

[FN134]. See Healthy People 2010, Immunization and Infectious Diseases, available at http:// www.healthypeople.gov/Document/HTML/Volume1/14Immunization.htm.

 

[FN135]. See id.

 

[FN136]. See, e.g., American Acad. of Pediatrics, Catch-up Immunization Schedule (2008), available at http://www.idph.state.il.us/about/2008_catch-up_schedule.pdf.

 

[FN137]. Shari B. Fallek, Health Care for Illegal Aliens: Why It Is a Necessity, 19 Hous. J. Int’l L. 951, 969-80 (1997) (pointing out that scaring immigrants away from receiving medical care only exacerbates the health problems for all).

 

[FN138]. Id. at 970.

 

[FN139]. See id. at 969-72.

 

[FN140]. American College of Physicians–American Society of Internal Medicine, Expert Guide to Infectious Diseases 424 (James S. Tan et al. eds., American College of Physicians Press 2d ed. 2008).

 

[FN141]. Id.

 

[FN142]. Id. at 424.

 

[FN143]. Id.

 

[FN144]. U.S. Dep’t of Health & Human Servs., Progress Review, Immunization and Infectious Diseases (2007), http:// www.healthypeople.gov/Data/2010prog/focus14/.

 

[FN145]. Ctr. for Disease Control, HIV Prevention Through Early Detection and Treatment of Other Sexually Transmitted Diseases 17-20 (1998), http:// www.cdc.gov/mmwr/PDF/rr/rr4712.pdf.

 

[FN146]. Ctr. for Disease Control, Influenza Symptoms, http:// www.cdc.gov/flu/symptoms.htm (last visited Apr. 12, 2008).

 

[FN147]. American College of Physicians–American Society of Internal Medicine, supra note 140, at 423.

 

[FN148]. Id. at 418.

 

[FN149]. Ctr. for Disease Control, Types of Influenza Viruses, http:// www.cdc.gov/flu/about/viruses/types.htm (last visited Apr. 12, 2008).

 

[FN150]. Inst. of Med., Ending Neglect: The Elimination of Tuberculosis in the United States 1 (Lawrence Geiter ed., Nat’l Acad. Press 2000), available at http://www.nap.edu/catalog/9837.html [hereinafter The Elimination of Tuberculosis].

 

[FN151]. Id. at 15.

 

[FN152]. Id.

 

[FN153]. Ctr. for Disease Control, Multidrug-Resistant Tuberculosis (2007), http://www.cdc.gov/tb/pubs/tbfactsheets/mdrtb.htm [hereinafter Multidrug-Resistant Tuberculosis].

 

[FN154]. See id. at 14.

 

[FN155]. Ctr. for Disease Control, The Difference Between Latent TB Infection and Active TB Disease (2007), http:// www.cdc.gov/tb/pubs/tbfactsheets/LTBIandActiveTB.htm (last visited Apr. 13, 2008) [hereinafter The Difference Between Latent TB Infection and Active TB Disease].

 

[FN156]. Id.

 

[FN157]. Ctr. for Disease Control, The Treatment of Tuberculosis, http:// www.cdc.gov/mmwr/preview/mmwrhtml/rr5211a1.htm (last visited Apr. 12, 2008).

 

[FN158]. Francesca M. Gany et al., Drive-by Readings: A Creative Strategy for Tuberculosis Control Among Immigrants, 95 Am. J..of Pub. Health 117, 117 (2005).

 

[FN159]. Ctr. for Disease Control, Trends in Tuberculosis Incidence–United States, 2007, http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5611a2.htm [hereinafter Trends in Tuberculosis Incidence].

 

[FN160]. See The Elimination of Tuberculosis, supra note 150.

 

[FN161]. Id.

 

[FN162]. Id.

 

[FN163]. See id.

 

[FN164]. Multidrug-Resistant Tuberculosis, supra note 153; Ctr. for Disease Control, Extensively Drug-Resistant Tuberculosis (2007), http:// www.cdc.gov/tb/pubs/tbfactsheets/xdrtb.htm [hereinafter Extensively Drug-Resistant Tuberculosis].

 

[FN165]. Multidrug-Resistant Tuberculosis, supra note 153; Extensively Drug-Resistant Tuberculosis, supra note 164.

 

[FN166]. Trends in Tuberculosis Incidence, supra note 159.

 

[FN167]. Drug Resistant TB: CDC’s Public Health Response Before the Subcomm. on Africa and Global Health of the H.R. Comm. on Foreign Affairs, 110th Cong. 2 (2008) (testimony of Julie L. Gerberding, Dir., Ctr. for Disease Control), available at http://foreignaffairs.house.gov/110/ger022708.htm [hereinafter Gerberding Testimony].

 

[FN168]. Multidrug-Resistant Tuberculosis, supra note 153.

 

[FN169]. Id.

 

[FN170]. Gerberding Testimony, supra note 167.

 

[FN171]. The Difference Between Latent TB Infection and Active TB Disease, supra note 155; Multidrug-Resistant Tuberculosis, supra note 153; Extensively Drug-Resistant Tuberculosis, supra note 164.

 

[FN172]. See, e.g ., Ctr. for Disease Control, Guidelines for Preventing the Transmission of Mycobacterium Tuberculosis in Health Care Facilities, 1994, 43 No. RR-13 and Morbidity and Mortality Weekly report 1, 28 (Oct. 28, 1994).

 

[FN173]. Craig Schneider & Jim Galloway, Teen Jailed in Gwinnet in Another Case of TB, Atlanta Journal-Constitution, Aug. 26, 2007, at J1, available at http://www.ajc.com/metro/content/metro/atlanta/stories/2007/08/26/tbcase_ 0826.html.

 

[FN174]. Id.

 

[FN175]. Council of State Governments, The Council of State Governments Resolution of Pandemic Flu Preparedness 2006, http:// www.csg.org/policy/documents/ResolutiononPandemicFluPreparedness.pdf.

 

[FN176]. See Eleanor D. Kinney, Can the Medicare, Medicaid, and SCHIP Programs Meet the Challenges of Public Health Emergencies?, 58 Admin. L. Rev. 559, 567-69 (2006) (noting that while the sources generating natural disasters, catastrophic accidents, terrorist attacks, and epidemics differentiate the types of events, they all may cause disease and injury and therefore must be addressed as public health emergencies).

 

[FN177]. See generally Sara Rosenbaum et al., Public Health Emergencies and the Public Health/Managed Care Challenge, 30 J.L. Med. & Ethics 63 (2002) (discussing tension between public health goals in the face of public health emergencies and fiscal constraints of insurance structure).

 

[FN178]. American College of Physicians–American Society of Internal Medicine, supra note 140, at 427, 430.

 

[FN179]. Id. at 428.

 

[FN180]. Id. at 427-30.

 

[FN181]. Id. at 428.

 

[FN182]. See id. at 427.

 

[FN183]. Healthy People 2010, Maternal, Infant and Child Health, available at http://www.healthypeople.gov/document/html/volume2/16mich.htm.

 

[FN184]. U.S. Gen. Accounting Office, Prenatal Care: Early Success in Enrolling Women Made Eligible by Medicaid Expansions 7 (1991), available at http://archive.gao.gov/d21t9/143346.pdf.

 

[FN185]. Michael C. Lu et al., Elimination of Public Funding of Prenatal Care for Undocumented Immigrants in California: A Cost/Benefit Analysis, 182 Am. J. Obstetrics & Gynecology 233, 237 (Jan. 2000).

 

[FN186]. See Dept. of Homeland Security, Yearbook of Immigration Statistics–2006, http://www.dhs.gov/ximgtn/statistics/publications/LPR06.shtm.

 

[FN187]. Migration Policy Inst., Fact Sheet on the Foreign Born Demographic & Social Characteristics, http:// www.migrationinformation.org/DataHub/acscensus.cfm (last visited Feb. 8, 2008) (selecting any state will produce that state’s data as well as national statistics for comparison).

 

[FN188]. Id.

 

[FN189]. See generally Janet M. Calvo, Health Care Access for Immigrant Women, in Man-Made Medicine, Women’s Health, Public Policy, and Reform 161 (Kary L. Moss ed., Duke Univ. Press 1996).

 

[FN190]. See U.S. Const. amend. XIV, § 1.

 

[FN191]. Nat’l Conference of State Legislature, Funding Prenatal Care for Unauthorized Immigrants, http://ncsl.org/programs/immig/prenatal.htm (last visited Apr. 12, 2008).

 

[FN192]. See generally Lu et al., supra note 185.

 

[FN193]. Id. at 237.

 

[FN194]. Id.

 

[FN195]. Cindy Chang, Health Care for Undocumented Immigrant Children: Special Members of an Underclass, 83 Wash. U. L.Q. 1271, 1274 (2005) (noting that unqualified individuals are ineligible for all non-emergency public benefits).

 

[FN196]. 8 U.S.C. § 1613 (2000).

 

[FN197]. Lewis v. Thompson, 252 F.3d 567, 591 (2d Cir. 2001).

 

[FN198]. 42 C.F. R. § 457.10 (2006). See State Children’s Health Insurance Program: Eligibility for Prenatal Care and Other Health Services for Unborn Children, 67 Fed. Reg. 61,955 (2002) (to be codified at 42 C.F.R. pt. 457).

 

[FN199]. See generally Aguilar, supra note 38.

 

[FN200]. See generally Fentiman, supra note 20.

 

[FN201]. Id. at 561-62.

 

[FN202]. Michelle Weinberg et al., Migration Law and the Public’s Health, 33 J.L. Med. & Ethics 109, 110 (2005).

 

[FN203]. Id.

 

[FN204]. See generally Chang, supra note 195.

 

[FN205]. Inst. of Med., Health Insurance is a Family Matter 111 (Nat’l Acad. Press 2002) [hereinafter Health Insurance is a Family Matter].

 

[FN206]. Id. at 112.

 

[FN207]. Id.

 

[FN208]. Id. at 2.

 

[FN209]. Id.

 

[FN210]. Health Insurance is a Family Matter, supra note 205, at 118.

 

[FN211]. Id.

 

[FN212]. Id. at Appendix B, 155-56.

 

[FN213]. Id. at 118 (noting that adolescents encounter new and challenging health care needs).

 

[FN214]. Id.

 

[FN215]. Inst. of Med., Insuring America’s Health 42-43 (Nat’l Acad. Press 2004) [hereinafter Insuring America’s Health].

 

[FN216]. See, e.g., id. at 43.

 

[FN217]. See generally Jack Hadley, Sicker and Poorer–The Consequences of Being Uninsured: A Review of the Research on the Relationship between Health Insurance, Medical Care Use, Health, Work, and Income 60 No. 2 Supp. Med. Care Res. & Rev. 3S (2003).

 

[FN218]. See Amy L. Fairchild & Ava Alkon, Back to the Future? Diabetes, HIV, and the Boundaries of Public Health, 32 J. Health Pol. Pol’y & L. 561 (2007).

 

[FN219]. Allison Russo et al., Healthcare Cost and Utilization Project, Agency for Healthcare Research and Quality, Trends in Potentially Preventable Hospitalizations Among Adults and Children, 1997-2004 (2007), http://www.hcup-us.ahrq.gov/reports/statbriefs/sb36.pdf.

 

[FN220]. See A Shared Destiny, supra note 129, at 121-22 (discussing the economic and social implications of uninsurance within communities).

 

[FN221]. Jeffrey S. Passel, Pew Hispanic Ctr., The Size and Characteristics of the Unauthorized Migrant Population in the U.S. Based on the March 2005 Current Population Survey 7 (Mar. 7, 2006), http:// pewhispanic.org/files/reports/61.pdf.

 

[FN222]. Id. at 7-8.

 

[FN223]. Id. at 8.

 

[FN224]. Id.

 

[FN225]. Id.

 

[FN226]. Insuring America’s Health, supra note 215.

 

[FN227]. Neda Mahmoudzadeh, Comment, Love Them, Love Them Not: The Reflection of Anti-Immigrant Attitudes in Undocumented Immigrant Health Care Law, 9 Scholar 465, 468-69 (2007).

 

[FN228]. Id.

 

[FN229]. Jacob Press, Poor Law: The Deficit Reduction Act’s Citizenship Documentation Requirement for Medicaid Eligibility, 8 U. Pa. J. Const. L 1033, 1037 (2006).

 

[FN230]. Id. at 1039-41.

 

[FN231]. Donna Cohen Ross, Ctr. on Budget & Pol. Priorities, Medicaid Documentation Requirement Disproportionately Harms Non-Hispanics, New State Data Show 1 (July 10, 2007), http://www.cbpp.org/7-10-07health.htm.

 

[FN232]. Deficit Reduction Act of 2005, § 6036 amending 42 U.S.C. § 1396b.

 

[FN233]. Ross, supra note 231, at 1.

 

[FN234]. Medicaid Citizenship Guidelines Revised, 17 No. 1 Healthcare Registration 7 (Oct. 2007).

 

[FN235]. See id.

 

[FN236]. Id.

 

[FN237]. Id.

 

[FN238]. Id.

 

[FN239]. 8 U.S.C. § 1641(b) (2006).

 

[FN240]. Medicaid Program: Eligibility of Aliens for Medicaid, 55 Fed. Reg. 36,813, 36,819-36,820 (Sept. 7, 1990) (to be codified at 42 C.F.R. pts. 435, 436, and 440).

 

[FN241]. See M.K.B. v. Eggleston, 445 F. Supp. 2d 400, 435-36 (S.D.N.Y. 2006).

 

[FN242]. Id.

 

[FN243]. Id. at 443.

 

[FN244]. Id. at 434.

 

[FN245]. Id. at 434-37.

 

[FN246]. See Weinberg et al., supra note 202.

 

[FN247]. HHS Departmental Appeals Board Decision, Appellate Division, No. A-96-118, Dec. No. 1583, June 24, 1996, reported in Medicaid and Medicare Guide (CCH) ¶ 44,505.

 

[FN248]. Jonathan Blazer, Nat’l Immigration Law Ctr., Immigration Reform and Access to Public Benefits: An Uneasy Coupling 1-2 (2006), http:// www.nilc.org/immlawpolicy/cir/cirandbenefits_2006-5-15.pdf.

 

[FN249]. Lewis v. Thompson, 252 F.3d 567, 569 (2d Cir. 2001).

 

[FN250]. Aliessa ex rel. Fayad v. Novello, 96 N.Y.2d 418, 436 (N.Y. 2001).

 

[FN251]. Texas AG Issues Opinion that County Hospitals Not Allowed to Serve “Not Qualified” Immigrants, Immigrants’ Rights Update (Nat’l Immigration Law Ctr.), Aug. 31, 2001, available at http:// www.nilc.org/immspbs/health/health012.htm.

 

[FN252]. Id.

 

[FN253]. Id.

 

[FN254]. See id.

 

[FN255]. Soskin v. Reinertson, 353 F.3d 1242, 1244 (10th Cir. 2004).

 

[FN256]. Colorado Legislature Votes to Restore Medicaid Eligibility for Immigrants, Immigrants’ Rights Update (Nat’l Immigration Law Ctr.), Feb. 10, 2005, available at http://www.nilc.org/immsphs/health/health032.htm.

 

[FN257]. The Commonwealth Fund, Framework for a High Performance System for the United States (Aug. 2006), available at http:// www.commonwealthfund.org/publications/publications_show.htm?doc_id=387153.

 

[FN258]. Insuring America’s Health, supra note 215, at 1.

 

[FN259]. Id. at 2.

 

[FN260]. Id.

 

[FN261]. Id.

 

[FN262]. See generally Inst. of Med., Hidden Costs, Value Lost- Uninsurance in America (Nat’l Acad. of Sciences 2003).

 

[FN263]. Id.

 

[FN264]. See Pew Hispanic Ctr., A Statistical Portrait for the Foreign-Born Population at Mid Decade, (2006) http:// pewhispanic.org/factsheets/factsheet.php?FactsheetID=36 (noting that the American population in 2005 was 288,398,819 people).

 

[FN265]. Wasem Testimony, supra note 4.

 

[FN266]. Id.

 

[FN267]. A study from the RAND Corporation estimated that undocumented adult immigrants, who make up about 3.2% of the population, account for only about 1.5% of U.S. medical costs. See Dana P. Goldman et al., Immigrants and the Cost of Medical Care, 25 Health Aff. 1700, 1709 (Nov./Dec.2006).

 

[FN268]. Five Basic Facts on Immigrants, supra note 53.

 

[FN269]. Id.

 

[FN270]. Sarita A. Mohanty et al., Health Care Expenditures of Immigrants in the United States: A Nationally Representative Analysis, 95 Am J. Pub. Health 1431, 1431-38 (2005).

 

[FN271]. Susan Okie, Immigrants and Health Care – At the Intersection of Two Broken Systems, 357 N. Engl. J. Med. 525, 526 (Aug. 9, 2007).

 

[FN272]. Cal. Immigrant Pol’y Ctr., Immigrants and the U.S. Health Care System (2006), http://www.nilc.org/immspbs/health/Issue_ Briefs/imms&ushealthcare_2007-01.pdf.

 

[FN273]. Id.

 

[FN274]. Henry J. Kaiser Family Found., Immigrants’ Health Care Coverage and Access (2003), http://www.kff.org/uninsured/upload/Immigrants-Health-Care-Coverage-and-Access-PDF.pdf.

 

[FN275]. Id.

 

[FN276]. Inst. of Med., Consequences of Uninsurance, available at http:// www.iom.edu/uninsured.

 

[FN277]. Insuring America’s Health, supra note 215, at 112.

 

[FN278]. Id. at 112.

 

[FN279]. Id. at 3.

 

[FN280]. Fallek, supra note 137, at 967-69.

 

[FN281]. See Inst. of Med., Uninsurance Facts & Figures (Nat’l Acad. of Sciences 2001).

 

 

 

 

MORALES-SANTANA BEFORE THE U.S. SUPREME COURT: GENDER DISCRIMINATION IN DERIVATIVE CITIZENSHIP WITH CONSEQUENCES FOR GENDER EQUITY, PARENTAL RESPONSIBILITY AND CHILDREN’S WELL BEING

MORALES-SANTANA BEFORE THE U.S. SUPREME COURT: GENDER DISCRIMINATION IN DERIVATIVE CITIZENSHIP WITH CONSEQUENCES FOR GENDER EQUITY, PARENTAL RESPONSIBILITY AND CHILDREN’S WELL BEING

http://www.cunylawreview.org/scotus-lynch-morales-santana/

 

U.S. Supreme Court to Hear Case Regarding Gender Discrimination In Derivative Citizenship; Lynch v. Luis Ramon Morales-Santana

 

Janet M. Calvo

This term the U.S. Supreme Court will consider the case,  Lynch v. Luis Ramon Morales-Santana[1]Luis Morales-Santana was born in the Dominican Republic in 1962 to a United States citizen father, Jose Morales, and a Dominican mother. His parents were unmarried at the time.   Luis Morales-Santana was “legitimated” by his parents’ marriage in 1970.  He became a legal permanent resident of the U.S. in 1975 at age 13 when he moved to the U.S. with his parents.  He has lived in the U.S. since that time, for over forty years.  Before his birth, his father, Jose Morales, was physically present in Puerto Rico until just twenty days before his nineteenth birthday when he left Puerto Rico to work for an American company in the Dominican Republic, then occupied by the United States.

The case specifically addresses the constitutionality of gender differences in tfather-and-childhe acquisition of U.S. citizenship by statute through parentage. But the case is infused with issues about the historical record of discrimination in the United States based in gender and non-marital birth.[2]  The beginning words to the song, “Alexander Hamilton.” indicate the historical stereotypes regarding out of wedlock children and their parents:  “How does a bastard, orphan, son of a
whore….Impoverished, in Squalor….The ten dollar founding father without a father….”[3] The outcome of the case will be significant because of the standards the court may apply to gender discrimination, and to a remedy for discrimination in the context of citizenship, and the societal message sent about parental responsibility for non- marital children grounded in gender stereotypes.

The statute in effect at Luis Morales-Santana’s us10dollarbill-series_2004abirth in 1962 required that that an out of wedlock father have ten years of physical presence in the U.S., five years of which had to be after the father’s fourteenth birthday. In contrast, an out of wedlock mother had to have continuous physical presence in the U.S. for only one year at any time prior to the child’s birth.

The United States Court of Appeals for the Second Circuit held that the gender based difference in the statute’s physical presence requirements violated the Equal Protection Provisions of the U.S. Constitution.[4] The Second Circuit accepted Mr. Morales-Santana’s claim that he was a citizen at birth through his citizen father as a remedy for the statute’s gender discrimination.[5]  The federal government appealed to the U.S. Supreme Court.

This is not the first time the U.S. Supreme Court has addressed the issue of the constitutionality of the difference in physical presence requirements for mothers and fathers for derivative citizenship of their children.   In 2011, the Supreme Court divided four to four in the case of United States v. Flores-Villar.[6]

In its equal protection analysis, the Second Circuit first decided to apply intermediate “heighted” scrutiny since it determined that the statute discriminated on the basis of gender.  The court stated;

“Under intermediate scrutiny, the government classification must serve actual and important governmental objectives, and the discriminatory means employed must be substantially related to the achievement of those objectives.”

Further,

“the justification for the challenged classification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” [7]

The court then turned to the question of whether the government had shown that the statute’s gender based distinction was substantially related to an actual and important governmental objective. The circuit court rejected the government’s two proposed objectives.  The first assertion was that the legislature imposed the distinction to ensure a sufficient connection between the United States and the U.S. citizen’s child.  The court did not see any reason “that unwed fathers need more time than unwed mothers in the United States prior to their child’s birth in order to assimilate the values that the statute seeks to ensure are passed on to citizen children born abroad.”[8]

The second government assertion was that the legislature imposed different physical presence requirement to reduce the level of statelessness among newborn children.  The court found that the avoidance of statelessness was not the actual legislative purpose, and further, that the difference in the physical presence requirements was not substantially related to that goal.  Rather, the historical legislative record reflected legislators’ gender-based generalizations concerning who would care for and be associated with a child born out of wedlock.  Further, even if the potential for statelessness was the legislative concern, gender neutral alternatives could achieve that goal, such as providing citizenship to a child born to a citizen in the event that the child would otherwise be stateless.

The Second Circuit then decided that as a remedy for the equal protection violation Luis Ramon Morales-Santana was a U.S. citizen at birth because his citizen father met the one year of continuous physical presence required of a citizen mother.  The court found that this remedy was most consistent with Congressional intent.   The court rejected the contention that it was unlawfully affording citizenship.   It held that the court was exercising its traditional remedial powers “so that the statute, free of its constitutional defect, can operate to determine whether citizenship was transmitted at birth.”[9]  In the court’s view, the judgment in Mr. Morales’ favor confirms his pre-existing citizenship acquired at birth rather than granting him rights that he did not possess.[10]

Will the Supreme Court affirm the Second Circuit’s opinion?  The outcome will not only affect Mr. Morales- Santana and others seeking derivative citizenship, but it will also convey messages about gender equality, parental responsibility and discrimination grounded in out of wedlock birth. [11]

 

[1] Lynch v. Morales-Santana, 136 S.Ct. 2545,  June 28, 2016; http://www.scotusblog.com/case-files/cases/lynch-v-morales-santana/

[2] See, Serena Mayeri, Foundling Fathers: (Non-)Marriage and Parental Rights in the Age of Equality, 125 Yale L.J. 2292 (2016); http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2820208; Kristin A. Collins, Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction  of  Family, Race, and Nation, 123 Yale L.J. 2134  (2014); http://www.yalelawjournal.org/article/illegitimate-borders-jus-sanguinis-citizenship-and-the-legal-construction-of-family-race-and-nation; Janet M. Calvo, Gender, Wives, and U.S. Citizenship Status:  The Failure of Constitutional and Legislative Protection, The International Review of Constitutionalism, Volume 9, 2010, Number 2;  https://calvo.commons.gc.cuny.edu/2016/10/02/gender-wives-and…tizenship-status/; Solangel Maldonado, Illegitimate Harm:  Law, Stigma, and Discrimination Against Nonmarital Children, 63 Fla. L. Rev. 345  (2011)

[3] https://www.youtube.com/watch?v=yIl1OIGzuDg

[4] Morales–Santana v. Lynch, 804 F.3d 520 (2d Cir.2015).

[5] The case arose in the context of a removal case.  The government claimed Mr. Morales-Santana was removable because of a criminal conviction.  He claimed he was not removable because he was not an “alien” but a citizen at birth through his father.  Morales–Santana v. Lynch, 804 F.3d 520 (2d Cir.2015).

[6] Flores-Villar v. United States, 564 U.S. 210 (2011);

For description of and commentary on Flores-Villar see posts by Professor Ruthann Robson on the Constitutional Law Blog, http://lawprofessors.typepad.com/conlaw/2010/03/gender-equal-protection-immigration-scotus-grants-cert-in-floresvillar analysis.htmlhttp://lawprofessors.typepad.com/conlaw/2010/11/flores-villar-oral-argument-analysis-fathers-rights-or-citizenship-rights.html; http://lawprofessors.typepad.com/conlaw/2011/06/equally-divided-court-affirms-flores-villar-gender-differentials-in-immigration-statutes-remain-cons.html;http://lawprofessors.typepad.com/conlaw/2011/07/revisiting-flores-villar.html

[7] Morales–Santana v. Lynch, 804 F.3d 520 at 527

[8] Id at 530

[9] Morales–Santana v. Lynch, 804 F.3d 520 at 537.

[10] Morales–Santana v. Lynch, 804 F.3d 520 at 537-538.

[11] The law can reinforce or reject stigma against certain groups.   See Solangel Maldonado, Illegitimate Harm:  Law, Stigma, and Discrimination Against Nonmarital Children, 63 Fla. L. Rev. 345 at footnote 207 and the articles cited in that footnote (2011)

New York Case Challenges Nationwide Impact of U.S. v. Texas On New York DACA (Deferred Action for Childhood Arrivals) Recipients

Janet M. Calvo

A recent case filed in the U.S. District Court for the Eastern District of New York challenges the applicability of the nationwide injunction issued in U.S. v. Texas by a district court judge in Texas.   As explained in my prior posts here and here, the injunction was upheld by the Fifth Circuit and allowed to stand by the U.S. Supreme Court’s four to four tie in the case.  In his complaint, Martin Batalla Vidal asserts that the Texas injunction cannot apply to him.  He is a recipient of DACA (Deferred Action for Childhood Arrivals) under the 2012 guidance memo that was not challenged in the Texas case and is still in effect.  In the challenged 2014 memorandum that expanded eligibility for DACA and established DAPA, the Secretary of Homeland Security also stated that those approved for, or renewed, under 2012 DACA could be work authorized for a three year instead of a two-year time period.   Even though 2012 DACA was not challenged, the Texas judge enjoined the issuance of three years’ authorization to 2012 DACAs.  But certain DACA recipients, including Mr. Batalla Vidal, had already received the three-year authorization.   The federal government then revoked these authorizations.

Mr. Batalla Vidal’s complaint asserts that the injunction cannot apply to him because the plaintiffs in U.S. v. Texas lacked standing for a nationwide injunction requiring the revocation of three year authorizations.  Further, he argued that the Texas court lacked jurisdiction to enter a nationwide injunction because that remedy was broader than necessary to address the harm Texas asserted, i.e. increased costs for issuance of Texas drivers’ licenses.  Mr. Batalla Vidal was not a Texas resident, never applied for a Texas driver’s license and was not a party to the case in Texas.  He sued the federal government for subjecting him to an overbroad injunction in revoking his three-year authorization thereby violating the Administrative Procedure Act by engaging in agency action not in accord with law.  He asked the Eastern District Court for an injunction setting aside the revocation and restoring his three-year authorization.

nicholas_garaufisThe case is before Judge Nicholas Garaufis. In a transcript of a conference Judge Garaufis expressed a preliminary openness to the claim and a skepticism about the nationwide impact of the injunction from the Texas court.  He asked, hypothetically:

“How does Judge Garaufis issue a nationwide injunction if someone comes to him with a claim that affects the rights of people in California who have not been before the court… why should a judge in California… be constrained in adjudicating the individual rights of a resident of…California because Judge Garaufis in the Eastern District of New York decided to impose some gargantuan preliminary injunction?” [and he commented], “That doesn’t sound like justice to me.”

In response to the federal government attorney’s explanation that the government was constrained by the Texas injunction the judge responded:

“I sympathize with your problem, but I do not sympathize with the idea that I am hamstrung in dealing with an issue involving individual rights …. I have absolutely no intention of simply marching behind the parade that’s going on out there in Texas, if this person has rights here. “

The judge then set a briefing schedule for the attorneys to articulate their arguments and set an oral argument date in January 2017.

 

Gender, Wives, and U.S. Citizenship Status

INTERNATIONAL REVIEW OF CONSTITUTIONALISM,  Volume 9, 2010, Number 2.

 Gender, Wives, and U.S. Citizenship Status: The Failure of Constitutional and Legislative Protection            Janet M. Calvo[1]

ABSTRACT

Historically, the citizenship of women as wives has not been fully protected by either the United States Constitution or the United States Congress.  Citizen women married to non-citizen men suffered the involuntary loss of citizenship.   Non-citizen women married to citizens suffered a subordinating process for the acquisition of citizenship.  Both the loss and acquisition of citizenship by wives were historically based in state imposed gender norms that devalued women.   Further, the easily accepted gender norms formed the constitutional basis for the involuntary expatriation of expanding groups of other citizens.   Legacies of this history persist in the failure of the Supreme Court and Congress to conclusively reject marriage as an expatriating act, the persistence of Congressional power to set expatriating acts, the continuing and proposed punishment for transnational connections, and an immigration system that impedes the family unity of citizens and their spouses.  This history and its legacies undermine a concept of citizenship grounded in the value of each individual citizen and a protection of individual capacity and choice.

Introduction

The citizenship of women as wives has not been fully protected by either the United States Constitution or the United States Congress.  Citizen women married to non-citizen men suffered the involuntary loss of citizenship.   Non-citizen women married to citizens suffered a subordinating process for the acquisition of citizenship.   Laws limiting citizenship status undermined individual choice based in notions about gender combined with notions about “race” and association with the “foreign.”

Citizenship status was and continues to be important even in a rapidly globalizing world.[2]  Citizenship provides the basic right to indefinitely live in a country and not be forcibly removed. Citizenship, in a democracy like the United States, defines who has the right to determine how the society is run, who has the right to permanently gain the benefits the society has to offer,[3] as well as who takes responsibility for the society as a whole.[4]  The right to citizenship is the “right to have rights.”[5]  Yet, statutes and court decisions interpreting the U.S. Constitution have imposed societal views about gender, rather than protecting citizenship.  The gender views imposed have most often perpetuated the subordination of women and limited female choice.  Ironically, however, the views about women as wives provided practical personal advantage at times, for some women, even while limiting independent choice for women as a whole.

This article examines the constitutional and legislative protection of citizenship status in the United States through the lens of gender, particularly through the restrictions imposed on women as wives in the history of citizenship, a role historically ascribed to women. While the primary focus here is on gender, gender-based restrictions on citizenship intersect with race-based restrictions on citizenship.  Accordingly, the lens of “race” as conceived in the citizenship context is included for an understandable analysis of gender. The notions about gender and a women’s incapacity for agency and citizenship reflect a broader tension in U.S. concepts of citizenship also underlying the interrelated restrictions on citizenship based on racism and xenophobia.

This article first examines the loss of citizenship through marriage.   It details the constitutional adjudication that upheld the involuntary expatriation of wives.  It demonstrates how easily accepted gender norms formed the constitutional basis for the involuntary expatriation of not only women, but also expanding groups of other citizens.  Although the Supreme Court curtailed legislative power to involuntarily expatriate citizens, it has never fully rejected the notions of gender subordination underlying citizenship loss.  The article next turns to the legislative approach to gender based expatriation.  It shows how Congress intertwined gender, race and fear of the “foreign” to limit the legislation  that was purported to remove the expatriation of citizen women.  It examines the legacies of the expatriation of wives, including concerns about the constitutionality of marriage as an expatriating act, the persistence of Congressional power to set expatriating acts and the continuing and potential punishment for transnational connections.

This article then turns to the acquisition of citizenship by wives through marriage to U.S. citizens.  For a period of time, by statute, the wife of a U.S. citizen acquired U.S. citizenship by the fact of her marriage.  This article explains how for some women this promoted the unity of their families, even while imposing subordinating gender stereotypes.  It then turns to the legacy of imposing notions of independent citizenship on wives’ acquisition of citizenship; the current arduous road to citizenship status that still includes aspects of control of wives by their husbands.   The article concludes by asserting a view of citizenship in a democracy that values individual choice and dignity.

The Loss of Wives’ Citizenship Through Marriage

     Overview

In the United States, women lost their citizenship through marriage to men who were not citizens, and the U.S. Supreme Court upheld this extraordinary outcome as constitutionalThe U.S. Constitution only directly addresses citizenship in two limited provisions. The original Constitution contained no definition of citizenship.  It merely included the authority for Congress to “establish a uniform rule of naturalization.”[6] The Fourteenth Amendment added in 1868 provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside.”[7]

The Fourteenth Amendment did not include explicit rights for women as fought for by women’s rights advocates, many of whom had been active in abolitionist movements.[8]  However, these advocates believed that the Fourteenth Amendment’s guarantee of the privileges and immunities of citizenship to all those born or naturalized in the United States applied to them.[9]  The Supreme Court decisions in cases such as Bradwell v. State of Illinois[10] in 1873 and Minor v. Happersat[11] in 1875 disabused them of those notions by finding that endeavors such as practicing a profession and voting were not incidents of citizenship.[12]  These cases reflected the view that the proper place for women was not in the economic or political sphere.[13]

Yet, it was a shock to women in the United States when they discovered that, over forty years after its passage, the Fourteenth Amendment did not even protect their more basic right to base line citizenship.[14]  In 1907, Congress passed an Expatriation Act that stated that upon marriage a woman assumed the nationality of her husband.[15]  This resulted in the involuntary loss of citizenship for women who were born or naturalized in the United States if they married a man who was not a U.S. citizen, even if the couple lived in the United States.  Further, as a result, some women were rendered stateless and others were designated with the citizenship of a country with which they had no contact.[16]  Moreover, the law perpetuated deep gender discrimination.  Not only did male citizens not lose citizenship by marrying a non-citizen, but also under an 1855 statute, their wives gained U.S. citizenship through marriage.[17]

The 1907 and 1855 statutes infused the common law notion of coverture into citizenship.  Under the common law notion of coverture a wife was considered a feme covert, under the protection and influence of her husband, who was considered her baron, or lord.  Husband and wife were one, and the one was the husband.  Under this doctrine a wife could not make a contract with her husband or with others.  She could not engage in litigation.  She could not make a will.  The personal property that a woman owned before marriage and that she acquired during the marriage became her husband’s property. A husband had the use of his wife’s real property during the marriage.  The husband was the sole guardian of the couple’s children.[18]

However, by the turn of the twentieth century, coverture had been undermined by statutory changes. In the nineteenth century, state legislatures began to enact statutes that reduced the legal disabilities of married women.  These statutes, generally known as Married Women’s Property Acts, gave women greater control over the raising of children and the disposition of individual and family wealth.  By the turn of the century, all states had versions of such statutes.  Subsequently, additional laws began to be passed that specified the removal of married women’s legal disabilities.  These laws afforded married women rights including the right to joint custody of children, the right to sue and be sued, the right to contract, and the right to own and control real and personal property.[19]

In 1915, the U.S. Supreme Court in Mackenzie v. Hare upheld the constitutionality of the 1907 Act despite strong claims that the Fourteenth Amendment protected the citizenship of women.[20]  Ethel Mackenzie was born in and lived in California.  She was married to a British citizen who lived with her in California.  Her native California passed a law allowing female suffrage for women citizens and Mackenzie attempted to register to vote.[21]  However, she was denied because it was asserted she was not a U.S. citizen, because she had married a British citizen.  Ethel Mackenzie could not believe that Congress intended to take away her citizenship and so she challenged the denial of her registration to vote.[22]  The Supreme Court upheld the determination that she was not a U.S. citizen.[23]

The 1907 law and the 1915 Mackenzie decision upholding its constitutionality reinforced and perpetuated concepts of a subordinated role for women in U.S. society.  The statute imposed a more expansive view of coverture in the area of citizenship than had previously existed and did so at a time when coverture’s restraints were being loosened in other areas.  The Supreme Court infused the subordination concept underlying the coverture doctrine into the basic concept of citizenship and put a constitutional imprimatur on it.

Further, the Supreme Court established the constitutionality of the extraordinary notion of involuntary expatriation that endured deep into the twentieth century.  This notion allowed the expatriation not only of women, but also expanding groups of naturalized and native-born citizens.  Authority to involuntarily expatriate perpetuated the idea that some were worthy of citizenship and some were not.  Gender-based stereotypes thus formed the basis for a broader notion of government authority to remove the citizenship of others.  Because the Court so readily accepted subordinating gender norms, it was easy to slide into the extreme result of citizenship loss for connection with the “foreign.”  It was seen as inherently correct that women who deigned to associate with the “foreign” through marriage were not worthy of citizenship.  Today the legacy of that too easily accepted notion underlies attempts to denigrate the citizenship of some because they too have crossed some line of association with those in other countries.

Moreover, legislative responses to the decades-long struggle to legislatively regain nationality rights for women intertwined notions of gender inferiority with racial inferiority.  The legislation perpetuated the subordination of a woman’s status to her husband’s status.  Further,  it particularly penalized women who were considered racially inferior and women who married men who were considered racially inferior.

Constitutional Adjudication

Gender Subordination and the Basis for Involuntary Expatriation

Prior to the 1907 Act, women in the United States did not generally lose their citizenship because of marriage, even during the earlier days of the country when coverture was a stronger legal notion.[24]  The general view was that coverture addressed the relationship between husband and wife and not the relationship between female citizens and country.[25]  However, some cases held marriage combined with leaving the country could result in the suspension of citizenship.[26]  In 1830, in Shanks v. Dupont[27] the Supreme Court held that a woman had not lost her citizenship by marriage, but could have her citizenship suspended if she moved to her husband’s country of citizenship and lived there.[28]

Mackenzie argued for a similar interpretation of the 1907 Act.  She asserted that the Act did not apply to her because she was born in California and married her spouse in the United States and lived with him in the U.S.  The court rejected her argument. It found that the language of the 1907 law clearly removed the citizenship of all women who married non-citizens without regard to any other factor.[29]  Thus, the 1907 Act changed what had been the legal norm in the past.[30]  Mere marriage could result in involuntary loss of citizenship.  This was an extraordinary notion.  Marriage itself was the citizenship alienating conduct without any indication of lack of allegiance or the intent to give up citizenship.

The strengthening of gender subordination in the context of  citizenship was even more surprising in 1915 when the Supreme Court decided Ethel Mackenzie’s case because by then the notions of coverture had been somewhat loosened in other areas.[31]  Further, in 1915 the women’s suffrage movement was making headway as increasing numbers of states like California allowed women to vote, thus acknowledging the independent agency of women as citizens[32]

In the unanimous Mackenzie decision the Court acknowledged that there had been “much relaxation” of the principle of the “identity of husband and wife.”  However the court then proceeded to reassert the waning coverture notion as domestic policy and to expand the notion of female subordination into citizenship to justify government power.

The court stated:

The identity of husband and wife is an ancient principle of our jurisprudence….[I]n its retention as in its origin it is determined by their intimate relation and unity of interests, and this relation and unity may make it of public concern in many instances to merge their identity and give dominance to the husband.  It has purpose, if not necessity, in purely domestic policy; it has greater purpose, and it may be, necessity, in international policy.[33]

This view imposed coverture notions of the subordination of women as justification for government control and denial of the individual right to base line citizenship status.  The issue presented was not about the rights of husbands versus the rights of wives.  Indeed neither Gordon Mackenzie nor any other husband was afforded a right to choose whether his wife remained a citizen.[34] The court’s view of the appropriate subordination of women was a justification for an extraordinary expansion of legislative authority in the area of citizenship in general.

The Right to Citizenship

      Ethel Mackenzie argued what she understood to be the prevailing notion of citizenship, that the legislature could not remove citizenship without the consent of the citizen unless removal of citizenship was punishment for a crime.[35]  She further grounded her claim to citizenship in the Fourteenth Amendment, which clearly stated that all persons born or naturalized in the U.S. were citizens and had the privileges and immunities of citizenship.[36]

Her view had support in the prior American approach to the concept of expatriation.  The British notion was that the subject of a sovereign could not expatriate without the sovereign’s consent.  The United States rejected the notion of perpetual allegiance through an assertion of individual liberty to choose allegiance.[37]  In 1868, the same year as the passage of the Fourteenth Amendment, Congress passed an Act proclaiming that

“the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness.”[38]

Expatriation was viewed as grounded in the right of individual choice and liberty, as opposed to governmental control and domination.[39]

Ethel Mackenzie argued that the Constitution did not give any authority to Congress to remove citizenship.  It merely gave Congress the authority to grant citizenship by establishing a uniform rule of naturalization by the legislature.[40]  Further, she argued that the Fourteenth Amendment constitutionally protected citizenship and gave no authority to Congress to restrict the effect of birth in the United States as a sufficient and complete right to citizenship.[41]

The Supreme Court rejected these arguments.  First, it found that she had voluntarily expatriated because she had voluntarily entered into marriage, despite her express assertions that she had no intention of giving up her citizenship, and that she continued to want to retain it.[42]  The court agreed that the authority of Congress to impose expatriation against her explicit wishes was not an express power given in the Constitution.  However, the court found that Congressional authority was implied in attributes of sovereignty and the powers of nationality in intercourse with other countries.[43]  In the court’s view, involuntary expatriation of a woman because of her marriage was not arbitrary because her marriage to a non-citizen might bring the United States government into embarrassments and perhaps controversies with other countries.[44]

This reasoning thus set the bar very low for the reasonableness of Congressional action to involuntarily expatriate citizens.  The extreme result of citizenship loss could be based on behavior the legislature considered merely potentially embarrassing or a potential source of controversy with another country.  The concept of voluntary expatriation, grounded in notions of individual liberty, had been turned around into expansive legislative power to strip individuals of citizenship, despite their intent and clearly expressed choice.  Stripping a person of citizenship had severe consequences.  It removed the person’s unqualified right to live in and exit and enter the country and often the right to own property, engage in certain types of labor and vote.   Sometimes the citizen became stateless.[45]

After the sweeping expatriation authority established by the Mackenzie decision, an expanded concept of citizenship loss took hold.  The legislature could prescribe situations in which citizenship would be lost without regard to the intent or choices of the individual.  The 1907 law had included other grounds of expatriation such as living in a foreign state for certain times, taking an oath of allegiance or naturalizing in another state.[46]  Congress passed succeeding laws, specifically in 1940 and 1952, that increased the grounds for involuntary expatriation indicating additional behavior that would result in citizenship loss,[47] including residence in other countries, voting in an election in another country, and participating in institutions of a foreign country.[48]  Congressional authority to set conduct that resulted in involuntary expatriation went unchallenged for over forty years.  It was assumed that the Mackenzie decision had clearly established this authority.[49]  Although as explained below, the broadness of Congressional power in this regard was significantly curtailed by the Supreme Court in the late 1960s, the Mackenzie decision was never explicitly overruled.[50]  Grounded in easily accepted notions about gender, the governmental power to strip citizenship grew, but when this power was curtailed, the gender notions were not clearly rejected.

Starting in 1958, cases argued before the Supreme Court posed serious challenges to Congressional authority to involuntarily expatriate its citizenry.[51]  In Perez v. Brownwell, a native born United States citizen was expatriated because he voted in a Mexican political election.[52]  In a five to four decision the Supreme Court upheld the statute on reasoning similar to the reasoning in Mackenzie.  Justice Frankfurter, for the majority, noted that the power of Congress to enact legislation depriving individuals of their American citizenship was first raised in Mackenzie.[53]  In Perez, the court found that the Congressional power to expatriate for designated conduct was found in the necessary and proper clause of the Constitution.  Involuntary expatriation for voting in a foreign election was found to be a rational means of implementing the government’s power to conduct foreign affairs.[54]

In his dissent for three members of the court Chief Justice Warren attempted to distinguish Mackenzie as not terminating, but suspending, citizenship.  He stated:

The statute that the Court there sustained did not divest Mrs. Mackenzie of her citizenship. It provided that ‘any American woman who marries a foreigner shall take the nationality of her husband.  At the termination of the marital relation,’ the statute continues, ‘she may resume her American citizenship…’ Her citizenship was not taken away; it was held in abeyance.[55]

This, he further explained, was an acknowledged consequence of marriage, stating:

This clause merely expressed the well-understood principle that a wife’s nationality ‘merged’ with that of her husband’s. ….  During coverture the privileges and obligations of a woman’s citizenship gave way to the dominance of her husband’s….[56]

The majority opinion rejected this approach and reaffirmed the broad Congressional power established by the Mackenzie decision stating:

Congress can attach loss of citizenship only as a consequence of conduct engaged in voluntarily….But it would be a mockery of this Court’s decisions to suggest that a person, in order to lose his citizenship, must intend or desire to do so. The Court only a few years ago said of the person held to have lost her citizenship in Mackenzie v. Hare: ‘The woman had not intended to give up her American citizenship.’[57]

In the majority’s view, Mackenzie engaged in conduct to which Congress attached the consequence of denationalization irrespective of, and absolutely contrary to, her intentions and desires, and further, that this congressional action was constitutional.

Apparently, it seemed that neither the majority nor the dissent disapproved of Mackenzie’s loss of citizenship.  For the majority, Congress had broad authority to involuntarily expatriate citizens based on congressionally designated conduct.  For the dissent, the suspension of a married woman’s citizenship was explainable by the notion of a woman’s citizenship merely giving way to the dominance of her husband while she was married.  Either approach reflected a view of the citizenship of women as having diminished import.  The majority’s opinion, however, viewed the easily accepted gender norms as an acceptable basis for diminishing the import of citizenship for others as well.

After a series of other cases,[58] the Supreme Court returned to the issue of Congressional authority to involuntarily expatriate citizens in Afroyim v. Rusk,[59] this time with a slightly different court composition and a different five to four decision result.[60]  Afroyim, like Perez, had lost citizenship through voting in a foreign political election.  The dissent for four justices relied on Mackenzie for the proposition that Congress had the authority to involuntarily expatriate for certain conduct stating:

The Court held in Mackenzie that marriage between an American citizen and an alien, unaccompanied by any intention of the citizen to renounce her citizenship, nonetheless permitted Congress to withdraw her nationality. It is immaterial for these purposes that Mrs. Mackenzie’s citizenship might, under the statute there, have been restored upon termination of the marital relationship; she did not consent to the loss, even temporarily, of her citizenship.[61]

Contrary to the dissent, the majority opinion in Afroyim made no mention of Mackenzie.  However, it explicitly overruled Perez.  Justice Black writing for the majority stated that Congress lacked the power to deprive persons of citizenship in the absence of a specific grant of power, and further, that the Fourteenth Amendment established a constitutional rule that protected citizenship.  In Justice Black’s view, U.S. citizenship could not be lost unless a citizen voluntarily relinquished it.[62]  His opinion asserted that a person has a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.[63]

The opinion summarized the holding:

We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race.[64]

However, gender was not mentioned.  Gender was not listed along with creed, color and race as a prohibited basis for citizenship loss.

In a subsequent case, the Supreme Court addressed the process for determining “voluntary” relinquishment and therefore its meaning.  In Vance v. Terrazas[65] the court held that the intent to expatriate could be found in a fair inference from conduct. An assertion of intent by a citizen did not resolve the issue.  Circumstantial evidence of conduct surrounding the designated expatriating act could establish the requisite intent to voluntarily expatriate.  Further, the court held that Congress had the authority to establish a mere preponderance of the evidence standard of proof to the expatriation determination.[66]

The State Department took the position that Mr. Terrazas was expatriated by his application for a certificate of Mexican nationality, which involved swearing allegiance to Mexico and renouncing his rights under any other nationality, including the U.S.  Terrazas had acquired dual nationality at birth since he was born in the United States and was also the son of a Mexican citizen.  The court ultimately held that the following process authorized by Congressional act was constitutional.  A statute could designate expatriating acts, here naturalizing in and taking an oath of allegiance to another country. The government first had to prove the expatriating act by a preponderance of the evidence.  The court held it was constitutional to presume the act to be voluntary, meaning not under duress or coercion.  This thereby shifted the burden to the citizen to prove the act was not voluntary.  If the citizen could not prove the act was involuntary, then the government had to satisfy its burden to prove that the act was performed with the necessary intent to relinquish citizenship.[67]

Terrazas was eventually found to have had the intent to voluntarily expatriate[68] by lower courts, despite his assertion of citizenship all the way to the U.S. Supreme Court.  After remand from the Supreme Court, the district court, affirmed by the circuit, found that a preponderance of the evidence supported the conclusion that Terrazas intended to relinquish his citizenship when he voluntarily committed the expatriating act.[69]  Thus, while Afroyim was reaffirmed to the extent that the Supreme Court held that intent to relinquish citizenship was required before expatriation, that concept was reigned in by a proof process that allowed citizenship to be taken away by a preponderance of circumstantial evidence.

 The Failure to Reject Subordinating Gender Norms

Still, the Afroyim decision was a major watershed in the constitutional protection of citizenship.  While the dissent in Afroyim still relied on Mackenzie, the majority never addressed the case.  Thus, the Supreme Court never explicitly rejected the concept of gender subordination that underlay the concept of constitutional governmental power to involuntarily expatriate citizens.[70]  This leaves some lingering doubt about whether the court was accepting the view that Mackenzie’s citizenship had been merely suspended through an acceptable norm of a husband’s dominance of a wife, as Justice Warren had suggested in his Perez dissent, and therefore, not a violation of the Constitution.

Further, the failure to declare the 1907 Act unconstitutional left the status of those who been expatriated under it uncertain.  As explained in the next section, by the 1960s there had been a series of statutes that provided various processes for different groups of women who had been expatriated to regain their citizenship.[71]  However, these statutory measures had additional qualifications and never automatically restored citizenship.  Moreover, as explained in more detail below, the immigration service continued to view expatriation through marriage under the 1907 Act as a constitutionally valid basis for removal of citizenship if it could be proven that the citizen wife married with the intent of giving up her citizenship.[72]

Although the Supreme Court has not overturned Mackenzie, the First Circuit and ironically, the Internal Revenue Service, have assumed the unconstitutionality of the 1907 Act.  In 1965, the First Circuit addressed the issue of the constitutionality of the 1907 Act in the context of derivative heritage citizenship.[73]  Angela Rocha claimed she was a U.S. citizen since her mother had been born in the United States.  In 1965, the court rejected her claim because it held that her mother had been expatriated under the 1907 act by her marriage to a Portuguese citizen in 1916 before Ms Rocha was born.  Further, in the court’s view, her mother’s expatriation was constitutional under the Mackenzie decision.[74]  However, after the Afroyim decision, the court withdrew this decision and ordered that Ms. Rocha be declared a citizen.  The court briefly stated that Afroyim refutes the rationale of Mackenzie and that under the reasoning of Afroyim, the 1907 Act would be unconstitutional.[75]

The United States Immigration and Naturalization Service, however, did not fully accept the premises of the Rocha decision.[76]  The Service took the position that expatriation by marriage under 1907 act remains a constitutional basis for citizenship loss despite the decision in Afroyim and notwithstanding the First Circuit’s decision in Rocha.  In the Service’s view:

[O]ne must ascertain the motivations and intentions of the citizen woman at the time she married the alien. It is conceivable that, to promote the most complete unity of husband and wife, and assure the closest possible marital union between the parties, a United States citizen woman who marries an alien may wish and intend to relinquish her citizenship and transfer her allegiance from the United States to the foreign state of which her husband is a national…..[77]In the agency’s view the notion of the unity of husband and wife persisted.

However, the Service’s interpretation does acknowledge the difficulties of proof :

[T]he citizen woman’s affirmative testimony that she did not intend to transfer her allegiance from the United States to the foreign state of which her husband was a national, or otherwise abandon her allegiance to a citizenship of the United States, will make it exceedingly difficult to sustain a finding of expatriation upon the basis of evidence from other sources.[78]

The Internal Revenue Service took a different approach.  An Internal Revenue Service ruling in 1975 addressed the tax liability of women who had been expatriated under the 1907 law.  The situation raised was that of a U.S. born woman who had been expatriated under the 1907 law because she had married a British citizen.  The issue presented was whether a woman in such a situation would be subject to U.S. gift and estate taxes and taxes on her income in and out of the United States.  The ruling determined that a woman expatriated under the 1907 law could be taxed as a U.S. Citizen.  The IRS merely asserted that, under current law, the 1907 law would be unconstitutional.  Therefore, in the IRS’s view, women expatriated under the 1907 law were and had always been United States citizens and could be taxed as citizens.[79]  However, this ruling stated it would not apply to income or estates until 1976.[80]

Thus, the Supreme Court eventually agreed with Ethel Mackenzie’s assertions that the Constitution protected citizenship and that a person could only be expatriated if she had the intent to relinquish her citizenship.  However, the Court did not appear to fully agree with her version of voluntary consent grounded in notions of individual choice and liberty.  A citizen’s clear assertion of intent to remain a citizen is not sufficient.  In the Supreme Court’s view a citizen’s assertions of intent can be undermined by circumstantial evidence showing that at the time of the purported expatriating conduct the citizen had the intent to give up her U.S. citizenship.  Additionally, the Supreme Court never fully rejected the gender norms underlying the 1907 Act since Mackenzie was never overruled.  Further, in the immigration service’s view, the Congressional choice to designate a woman’s marriage to a non-citizen as an expatriating act is constitutional if the government can demonstrate that at the time she married, she had the intent of giving up her citizenship through marriage. Ironically, the IRS, however, seems to have disagreed for purposes of subjecting those who had been involuntarily expatriated to tax liability as U.S. citizens.

Legislative changes

Like the Supreme Court, Congress never fully reversed the subordinating gender norms underlying the involuntary expatriation of wives.  There were numerous legislative changes, but none firmly and fully reversed the expatriation of wives against their wills. The 1907 law imposing involuntary expatriation on wives was modified legislatively.  However the modifications were done in a piece meal fashion and without retroactive effect.  It was not until 1931 that Congress declared that women citizens shall not cease to be citizens by reason of marriage.[81]  Moreover, this provision only applied to the future.   Wives who had been involuntarily expatriated faced numerous hurdles to regaining citizenship

Early attempts to change the law

The 1907 law had taken women’s rights advocates by surprise.[82]  The responses to attempts to change the law through legislation revealed that women’s transnational marriages provoked nationalistic and moralistic responses.[83]  Part of the resistance was grounded in concerns about naturalized citizens’ continuing connections with the country of their original nationality.[84]  The 1907 law had also provided for the denaturalization of naturalized citizens who lived in their native countries for two years.[85]  However, the antagonism to women who married non-citizens went beyond concerns about a person holding more than one citizenship or having other continuing connections with countries of origin.  Some women who were expatriated were left stateless, because not all other countries afforded citizenship to women who married their nationals.[86]  Further, gender norms trumped concerns about foreign associations since the foreign-born wives of U.S. citizens became U.S. citizens through marriage.  The loyalty of women who married non-citizens was called into question, but not the loyalty of male citizens who married foreign wives. [87]

The attitudes toward women who married foreign husbands were particularly revealed in the House Hearings, Relative to Citizenship of American Women Married to Foreigners.[88]  These hearings were held after Jeanette Rankin, a representative from Montana, introduced a bill in 1917 to amend the wife expatriation section of the 1907 bill.[89]  Committee members evidenced anger at American women who married foreign men and showed little compassion for the plight of women who were expatriated.[90]  National loyalty and personal loyalty were viewed as intertwined.  In one committee member’s view, the plight of the expatriated woman was “a good lesson to our American girls to marry American boys.”[91]

The fact that the United States had been involved in the First World War highlighted concerns about national loyalty.  As one commentator stated;

[W]e must recognize that this country is likely to forfeit some of an American-born woman’s original loyalty after her foreign marriage….A woman torn by double allegiance and with her affections pledged to a man in the enemy camp may easily be a very bad citizen indeed.[92]

However, as Ellen Spencer Mussey, the dean of the Washington College of Law, testified before the House Committee, a U.S. born woman who had married a citizen of one of the Central powers before the war was considered an alien enemy, even if she resided in the United States, while a German born woman married to an American citizen was not.[93]

The Cable Act and Amendments

The Mackenzie decision angered and energized suffragists.   The repeal of the Expatriation Act was high on suffragists’ agendas particularly after the Nineteenth Amendment to the U.S. Constitution assured women the right to vote in 1920.[94]  In 1922 Congress passed the Married Women’s Independent Citizenship Act, also known as the Cable Act, named after Representative Cable, who was an author of the bill.[95]  The Act, however, did not fully provide married women with independent citizenship.  First, the statute did not restore citizenship to those wives who had lost it, and second, the statute did not protect all wives from losing their citizenship in the future.

Further, as Professor Volpp[96] and other scholars have explained in detail[97], the Cable Act and a series of amendments intertwined notions of racial and ethnic inferiority with gender inferiority.  Views about gender and race supported the notion that some were not worthy of citizenship.  Those most disadvantaged were “non white” women and women, “white” or not, who married non-white non-citizen men.  In fact, for some the Cable Act made their situations worse than the 1907 law.[98]

The Intertwining of Gender, Race, Ethnicity in Citizenship

An understanding of the impact of the Cable Act and subsequent statutes requires an understanding of the “ineligible for citizenship” concept based in notions of ethnic and racial inferiority.   The first naturalization law in 1790 provided for naturalization for “free white aliens.”[99]  This led to years of mind-bending contention about who was “white.”[100]  In 1857, the Supreme Court’s decision in the Dred Scott case rejected the prevailing notion of citizenship through birth on U.S. soil by holding that free blacks born in the U.S. were not citizens.[101]  The post civil war Fourteenth Amendment in 1868 declared that all persons born or naturalized in the United States were citizens.  Thereafter, an 1870 statute allowed naturalization for those of African descent.[102]  However, the Chinese exclusion laws in 1882 specifically barred the naturalization of Chinese.[103]  Determinations of lack of whiteness also barred persons of various ethnicities from naturalization.  For example in the 1920’s the Supreme Court found that Japanese[104] were not Caucasian and therefore not white, Hindus[105] while Caucasian were not culturally white, and Filipinos[106] were not white persons, and thus all were ineligible for naturalization.  Being ineligible for naturalization meant being ineligible for citizenship.

In 1898, the question arose whether children born in the United States were U.S. citizens at birth, if their parents were ineligible for citizenship.  The Supreme Court determined in Wong Kim Ark[107] that the Fourteenth Amendment provision that all persons born in the U.S. were citizens protected the citizenship of those born in the U.S. despite their parents’ status.   Wong Kim Ark was a citizen through his birth on U.S. soil despite the fact that his parents were ineligible for naturalization because they were Chinese.[108]

Race based exclusions from naturalization were not totally eliminated until 1952,[109] although there were some earlier changes.  For example, a 1940 statute extended eligibility to races indigenous to the Western Hemisphere[110] and the Chinese were declared eligible for naturalization in 1943.[111]  The law now specifies that the right to naturalization cannot be denied or abridged because of race or gender[112]  However at the time of the Cable Act and many decades after, “ineligible for citizenship” or “ineligible to naturalize” were code phrases for not being sufficiently “white.”

The Provisions of the Cable Act and its Legislative Successors

The Cable act addressed two important issues related to the loss of wives’ citizenship.  Could wives in the future be expatriated through marriage?  What happened to the citizenship status of the women who had lost their citizenship under the 1907 law?  It also addressed the issue of acquisition of citizenship through marriage as more detailed below.[113]

The Cable Act provided that, generally, in the future a woman would not cease to be a citizen of the United States by reason of her marriage.  However, there were significant exceptions.  First, the citizenship of any woman who married a man “ineligible” for citizenship ceased.[114]  Second, the citizenship of a woman ceased if she married a non-citizen and lived in his country of citizenship for two years or lived anywhere outside of the U.S. for five years.[115]  Thus, while diminished, the premises of coverture continued since many women’s citizenship status was still controlled by the status of their husbands.

In 1930, the Act was amended to eliminate the cessation of wives’ citizenship based in foreign residence.  The 1931 amendment eliminated the cessation of citizenship for marriage to a man ineligible for citizenship.  The statute then read, “A woman citizen of the United States shall not cease to be a citizen of the United States by reason of her marriage after this section…takes effect….”[116]  Thus from 1931 onward marriage to a non-citizen was not designated as an expatriating act.[117]

However, none of these statutes or succeeding ones fully rejected marriage-based expatriation and restored citizenship to those who lost it through marriage to a non-citizen.   The Cable Act did not restore citizenship to all those involuntarily expatriated under the 1907 Act.  It merely allowed some, but not all, women who had been expatriated to petition for naturalization.[118]  Naturalization, however, required that the wife had to be eligible for citizenship. Thus, for example, a woman of Chinese heritage could not regain her citizenship because she could not naturalize.  Moreover, women who had lost their citizenship through marriage could only naturalize to regain citizenship if they had married men eligible for citizenship.  Thus, for example, a “white” woman who married an Asian man could not regain her citizenship.

Therefore, for some women, the Cable Act was worse than the 1907 Act.[119]  Under the 1907 law women who lost their citizenship through marriage could regain it if the marriage ceased through death or divorce.[120]  Under the Cable Act this provision was repealed. [121]  A woman who married a man ineligible for citizenship lost her citizenship and if she resided outside the United States her citizenship terminated.  If her marriage ended she could only request naturalization for which she had to be “racially qualified.”  Therefore some women, predominately Asian women, could not regain their citizenship since they were racially barred from naturalization.

The cases of Ng Fung Sing and Mary Das demonstrate the integration of gender and race disqualifications that underlay the law.  Ng Fung Sing was born in the United States and was therefore a United States Citizen at birth.  She was of Chinese heritage.  She married a Chinese man in 1920 and was widowed in 1924.  She left China to return to the United States.  She had been expatriated by the 1907 Act through her marriage to a non-citizen.  Under the 1907 Act she would have been able to regain her citizenship when widowed.  However, under the Cable Act she could not regain her citizenship through naturalization because as a Chinese person she was ineligible to naturalize.  Therefore, she could not be a citizen and was an alien.  As an alien of Chinese ethnicity, she was an alien excludable from the United States.  She was not allowed to enter the United States even though she was a native born citizen.[122]

Mary Das was a native born “white” U.S. citizen.  In 1914 she married a naturalized citizen who was a native of India. At the time he naturalized, Indians were considered Caucasian, and therefore “white.”  However, in 1923, the Supreme Court held that Indians were not “white.”[123]  Mr. Das was thereafter considered never to have been a lawful citizen.  Therefore, Mary Das was not a citizen, because under the 1907 law she lost her citizenship through marriage to a non-citizen.  Moreover, under the Cable act she could not regain her citizenship through naturalization because she was married to a man ineligible for citizenship.[124]

The laws regarding restoration of citizenship to women who lost their citizenship through marriage to non-citizens went through several amendments over the years and a number of women regained their citizenship through them.  However, none of the statutes simply restored citizenship to those who lost it.  The statutes provided qualifications and a required process.[125]

Currently there are two statutory processes through which women who lost their citizenship through marriage can regain it.  First, native-born women who lost citizenship through marriage, and whose marriage has terminated can resume citizenship upon taking an oath of allegiance.[126]     Other women, who lost citizenship through marriage to an alien prior 1922, or by marriage to an alien racially ineligible to citizenship between1922 and 1931, can be naturalized under the following conditions:  She acquired no other nationality other than by marriage;  She establishes good moral character and attachment to the United States;  She is a lawful permanent resident of the United States or resided continuously in the United States since her marriage.[127] Thus, women who lost their citizenship through marriage still have not been deemed citizens and face hurdles to restore their citizenship.

The Legacies of the Expatriation of Women Through Marriage

Under current law marriage is not an expatriating act, and citizenship cannot be removed based on notions about the subordination of women.  But there are still legacies of the failure of constitutional and legislative protection against the involuntary expatriation of wives.  These include the issue of the constitutionality of marriage as an expatriating act, the continuation of Congressional power to set expatriating acts, and the continuing and proposed punishment for transnational connections.

Concern About the Constitutionality of Marriage as an Expatriating Act

The first legacy of the involuntary expatriation of wives comes from the failure of the Supreme Court and Congress to explicitly reverse wives’ loss of citizenship.    The premises that penalized women for marrying “foreigners” were never explicitly rejected.  Therefore questions still linger.  Would Congress be able to constitutionally designate marriage as grounds for expatriation if the statute included that the marriage must have been entered into with the intent to give up U.S. citizenship?  If Congress did so could it treat women differently than men?  The immigration authorities’ statement regarding the lingering validity of the 1907 Act under Mackenzie would allow the designation of marriage as an expatriating act.[128]

The Supreme Court’s cases on citizenship loss accepted the notion that Congress can legitimately articulate acts that give rise to the issue of expatriation if they are done with the intent to relinquish citizenship.  However, since marriage has now been recognized as a fundamental right,[129] it would be difficult to assert that marriage could reasonably be a basis for citizenship loss, even with the proviso that the act needed to be accompanied by the intent to terminate citizenship.  Further, gender discrimination has been held to be unconstitutional in several cases using an intermediate scrutiny of legislative action.[130]   Therefore, it does not appear that Congress could constitutionally make marriage an expatriating act and/or treat men and women differently in this regard, even if Congress would politically choose such a course.  However, it should be noted that the passage of the 1907 act was a shock to many, including Ethel Mackenzie.  They could not believe Congress could constitutionally involuntarily expatriate wives or would choose to do so.

Congressional power to set expatriating acts

The second legacy is the Supreme Court’s determination that Congress has the authority to legislate the loss of citizenship.  Ethel Mackenzie argued that there is no authority in the Constitution to afford Congress the power to legislate on citizenship loss, especially after the passage of the Fourteenth Amendment.   The Supreme Court rejected this argument, but later restricted the Congressional authority to impose citizenship loss on citizens born or naturalized in the United States by requiring that the government prove a citizen’s intent to give up citizenship.[131]  However, the court did not restrict Congress from designating behavior that would constitute expatriating acts, and allowing the government to use circumstantial evidence to demonstrate that the act was engaged in with the intent of relinquishing citizenship.

The current statute continues to designate acts that can put a person in jeopardy of citizenship loss.  The extreme consequence of citizenship loss can be imposed through a process that does not have the protections of a criminal process and is not limited to designating behavior that would warrant the punishment of removal of citizenship.  Such extraordinary Congressional authority was initially grounded in notions of female subordination, not in any thoughtful analysis of the fundamental import of citizenship in a democracy.

The current nationality statute[132] states that U.S. citizens are subject to loss of citizenship if they perform certain specified acts voluntarily and with the intention to relinquish U.S. citizenship. Congress adopted the intent concept in 1986.  The statute now specifies that the acts of expatriation listed in the statute would terminate citizenship only if voluntarily performed “with the intention of relinquishing United States nationality.”[133]

These acts include: obtaining naturalization in a foreign state after obtaining the age of eighteen,[134] taking an oath, affirmation or other formal declaration to a foreign state or its political subdivisions[135] entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S. or serving as a commissioned or non-commissioned officer in the armed forces of a foreign state,[136] accepting employment with a foreign government if (a) one has the nationality of that foreign state,[137] or (b) an oath or declaration of allegiance is required in accepting the position,[138] formally renouncing U.S. citizenship before a U.S. diplomatic or consular officer outside the United States,[139] formally renouncing U.S. citizenship within the U.S. (but only under strict, narrow statutory conditions),[140] and conviction for an act of treason.[141]

The Department of State is responsible for determining the citizenship status of a person located outside the United States or in connection with the application for a U.S. passport while in the United States.[142]  In 1990, the State Department adopted a policy that, in most cases, pursues loss-of-citizenship proceedings only when an individual affirmatively states that he or she intends to relinquish U.S. citizenship. [143]

The Department of State employs a uniform administrative standard of evidence based on the premise that U.S. citizens intend to retain United States citizenship when they engage in certain of the statutory acts.[144]  These include obtaining naturalization in a foreign state, subscribing to a declaration of allegiance to a foreign state, serving in the armed forces of a foreign state not engaged in hostilities with the United States,[145] and accepting non-policy level employment with a foreign government.[146]  A citizen who engages in any of these acts and intends to retain U.S. citizenship is not required to submit a prior a statement or evidence of her intent to retain U.S. citizenship, since such intent will be presumed. [147]  However, the State Department has stated that dual nationality may affect United States citizenship status, and that problems can be caused by dual nationality such as obligations on citizens of other countries that may place them in conflict with United States laws.[148]

On certain occasions when it comes to the attention of a U.S. consular officer that a U.S. citizen has performed these potentially expatriating acts, the consular officer will ask the applicant if there was intent to relinquish U.S. citizenship when performing the act. The citizen may answer “no”, at which point the consular officer will certify that it was not the person’s intent to relinquish U.S. citizenship and the citizen will have retained her citizenship.[149]

However, the presumption that a person intends to retain U.S. citizenship is not applicable in certain circumstances.  These include when the individual takes a policy level position in a foreign state, serves in the armed forces of a foreign state engaged in hostilities with the United States,[150] is convicted of treason,[151] or performs an act made potentially expatriating by statute accompanied by conduct which is so inconsistent with retention of U.S. citizenship that it compels a conclusion that the individual intended to relinquish U.S. citizenship.[152]

Therefore, while the Congressional authority to impose the loss of citizenship has been curtailed by Supreme Court decisions, the Congressional power authorized by the Supreme Court in Mackenzie for the legislature to impose the loss of citizenship still exists.  The current practical impact of the loss of citizenship statute has been eased by administrative presumptions that certain acts, without more, are not accompanied by intent to relinquish U.S. citizenship.  Yet, still, those who engage in the potentially expatriating acts have the potential to lose their U.S. citizenship.  Further, the administrative interpretation is not formal and is thus subject to administrative change.  Moreover, there is some legislative opposition to the current State Department’s approach to expatriation. A bill was introduced in 2005 that sought to force the State Department to abolish its policy on loss of citizenship and reinstate its pre-1990 policy “of viewing dual/multiple citizenship as problematic and as something to be discouraged, not encouraged.”[153]

Continuing and Potential Punishment for Transnational Connections

 A further legacy lies in persisting controversies grounded in the concerns about association with the “foreign” that also underlay the legislative response to women who married foreign men.  A justification for the expatriation of wives was that they could not have transnational associations and still be good loyal American citizens.  Current controversies about dual nationality and participation in the life of other countries address a similar question.[154]  In a globalizing world[155] can U.S. citizens who have transnational connections, including active participation in the political life in other countries, still be good Americans?[156]  A good sampling of opposite answers to this question was presented in testimony before the House Immigration Subcommittee on September 29, 2005.[157]

John Fonte, from the Hudson Institute, asserted in his oral testimony and prepared statement that dual citizenship is incompatible with the moral and philosophical basis of American constitutional democracy for two reasons.[158] First, dual allegiance challenges a core foundation as a civic nation by promoting a racial and ethnic basis for allegiance and by subverting the assimilation of immigrants.[159]  In his view national loyalty is essential to America because the United States is built on political loyalty, not heritage or religion.  Second, he asserted that dual allegiance violates a vital principle of American democracy: equality of citizenship.[160]  If some citizens are dual and some are not, the dual nationals are more equal than other citizens since they have additional advantages such as voting in two nations. Further, dual nationality allows other countries like Mexico to have undue influence on American policies.[161]

He then criticized the Afroyim decision, but pointed out a position taken by Chief Justice Earl Warren in his dissent in Perez, the case overruled in Afroyim.  Justice Warren stated:

If the Government determines that certain conduct by United States citizens should be prohibited because of injurious consequences to the conduct of foreign affairs or to some other legitimate governmental interest, it may within the limits of the Constitution proscribe such activity and assess appropriate punishment.[162]

Borrowing from this idea, Mr. Fonte then proposed that Congress pass a law thatprovides that the following acts by U.S. citizens be felonies subject to sanctions of a $10,000 fine and one year in jail for each act:  voting in an election of the foreign state in which the person were previously a subject or citizen, running for elective office of the foreign state in which the person was previously a subject or citizen, serving in any government body of the foreign state in which the person was previously a subject or citizen, using the passport of the foreign state in which the person was previously a subject or citizen,  taking an oath of allegiance to the foreign state in which the person was previously a subject or citizen,  serving in the armed forces of the foreign state in which the person was previously a subject or citizen.[163]

Professor Peter Spiro presented a different view in his testimony and prepared statement.[164]  He asserted that dual nationality poses affirmative benefits both for individuals and the nation. From a national perspective, dual citizenship presents a means for extending American constitutional values. Naturalizing aliens absorb American democratic mentalities.[165]  If they maintain dual citizenship, they will be able to put those democratic tendencies to work in their country of origin.  Further, acceptance of dual nationality promotes individual rights.  Restrictions on dual nationality comprise restrictions on identity and association.[166]

Professor Spiro also stated that prior concerns about dual nationality have no place in a modern world.  They were grounded in concerns about a sovereign’s total control over its subjects that have no place in modern democracies.  Further, dual citizenship does not dilute full civic engagement.  Individuals have and effectively manage multiple memberships in civic, religious and political organizations.  The communications revolution has made it easier to remain informed participants in multiple polities.  It is also not reasonable to assume that dual nationals will be the pawns of other nations. Citizens are not a docile herd.  Emigrants tend not to accept the command of homeland rulers. Moreover, there has already been a quiet rise in dual nationality and this has attracted little controversy. [167]

The issue of the role of U.S. citizens who have transnational associations has recently been raised in the context of the earthquake tragedy in Haiti.  Former President Bill Clinton, the United Nations Special Envoy to Haiti, urged the participation of U.S. citizens of Haitian heritage in the revitalization of Haiti.  He stated:

[T]he Haitian Diaspora community is committed to helping, and they are more welcome than ever before.  The parliament just approved dual citizenship for the Haitian Diaspora….  We have got Haitian-Americans who are dying to go down there and invest and build a future.”[168]

The New York Times reported that many Haitians living in the United States were encouraged to participate in the rebuilding of Haiti by a constitutional amendment.  The amendment would have given them the right to vote and run for office in Haiti.[169]

Yet, the question arises whether those who do take up the task of rebuilding Haiti will jeopardize their American citizenship.  Accepting foreign government employment especially at a policy level, naturalizing, serving in the army or taking an allegiance oath to another country are still potential expatriating acts.  Further, if Mr. Fonte had his way, a U.S. citizen who voted or ran for office or served as a government official in another country would be committing a felony.  Some, like former President Clinton, promote active transnational connections.  For others, however, these connections continue to be indicia of disloyalty.  Will those Haitian Americans who actively participate in Haiti be punished for their transnational associations, as were the American citizen wives who married non-citizens?

 Acquisition of Citizenship by Wives Through Marriage

Legislative Basis and Changes

Like the loss of wives’ citizenship though marriage, wives’ acquisition of citizenship through marriage was based in the concepts of gender subordination.  Unlike some other constitutions,[170] the U.S. Constitution does not address the issue of citizenship acquisition through marriage.  Citizenship through marriage in the U.S. is acquired through legislation, and therefore, what the legislature can give, the legislature can constitutionally remove.  From 1855 to 1922, by statute, non-citizen women who were eligible for naturalization acquired U.S. citizenship through marriage to a U.S. citizen.

In 1855, Congress passed a statute that provided that women eligible for naturalization who married U.S. citizens would acquire U.S citizenship through the marriage.[171]  The wives were deemed to be U.S. citizens and treated as such.  They did not have to consent to become citizens.  Candice Bredbenner has labeled this “conscripted allegiance.”[172]  Prior to the passage of the 1855 law, women had been able to maintain their premarital citizenship.  The 1855 law denied foreign-born women their independent civil and political identities.[173]  The wives had no say in it.  It was a matter of state policy.  One federal agent explained as follows:

The United States statute stands upon the ground of public policy, not on the ground of the wife’s consent…. She may object to this naturalization and protest ever so formally that she will not become an American citizen…it makes no difference.  The law, founded on a wise public policy, requires her nationality to be the same as her husband’s, and she becomes by operation of law an American citizen.[174]

However, as a practical matter, the law advantaged many women, their spouses and their families.  As the United States moved to imposing restrictions on immigration, the practical advantage of being a citizen, rather that an alien seeking entry, grew.[175]  Wives who were citizens were not subjected to medical, educational, and geographic exclusions applied to alien women. For example, Thalkla Nicola was diagnosed with trachoma, a chronic eye disease, and refused admission by immigration authorities in 1911.  However, a court determined that since she was married to a United States citizen and therefore had citizenship, she was not subject to exclusion based on her medical condition.[176]  For many foreign-born women, the law imposing citizenship on married women was a means of access into the United States and a vehicle for family reunification.[177]  The conveyance of citizenship also protected wives from deportation and statelessness and afforded a means to inherit property in the United States.[178]

While this law practically benefited many foreign wives, its passage was not designed to promote their interests.  Rather, it’s objective was to promote the interests of their husbands and the state.  A congressional sponsor explained that by the act of marriage the political character of the wife should conform to the political character of the husband.  In his view women had no political rights to infringe, so the new law merely assisted a husband.[179]  While American women who married “foreigners” were tainted with disloyalty, a similar taint did not attach to American men with “foreign” wives.  Representative Raker explained that “under tutelage of her kind American citizen husband” his wife became “an American and patriot at heart.”[180]

While the law made it easier for families to be together, the objective was to honor a man’s right to his family as a component of male power and privilege.  Nancy Cott noted, “passed with no ceremony and little debate, the 1855 law took a big step, in effect raising the doctrine of coverture to the level of national identity.”[181]

However, individual male privilege did not overcome concerns about race and ethnicity.  There were race based limitations imposed even on an American citizen male’s prerogatives.  The American citizen’s wife had to be eligible to be naturalized, and as detailed above, that was code for “white.”  Therefore, Asian wives and others considered not “white” could not become citizens even if married to U.S. citizens.[182] (Blacks were included in 1870 when those of African descent were allowed to naturalize.)

In 1922, the concept of automatic citizenship for the wives of citizens got caught in the push to address the involuntary expatriation of citizen women.  The assertion of independent citizenship for women underlay the attempts to rid the law of coverture based notions.[183]  The Cable Act eliminated the automatic citizenship for non-citizen wives of U.S. citizens.[184]  However, this only diminished, but did not eliminate gender notions in citizenship.

The underlying concerns about subordination based on gender pushed advocates to change the citizenship laws that were based on who women married, rather than on their  choice.  However, as choice was given to some women citizens, it was removed from women non-citizens.  There was no consideration to removing gender discrimination by affording citizenship to all spouses, and thereby promoting the developing notions of the constitutional right to family, marriage and child rearing.  In 1923[185] and 1925[186] the Supreme Court had begun the recognition of personal family matters as fundamental rights under the due process clause of the Fourteenth Amendment by recognizing a fundamental right of parents to make decisions about their children.[187]  However the court did not explicitly recognize the right to marry[188] and the right to keep a family together[189] until 1967 and 1977.[190]  Promotion of a right to family unity for both wives and husbands was not the prevailing objective in the approach taken to citizenship in the context of marriage.  Perceptions of gender subordination and racial inferiority were the prevailing notions.

Gender and racial norms still continued in the pathway to citizenship.  While the Cable Act removed automatic citizenship for wives, it also provided a streamlined naturalization process for the wives, but not the husbands, of U.S. citizens.[191]  The Cable Act further declared that the right to become a naturalized citizen would not be denied to a woman because of her sex or because she is a married women.[192]  Previously, it was generally held that a woman married to a noncitizen could not be naturalized as a U.S. citizen on her own petition.[193]

However, under the Cable Act, a woman still had to be eligible for naturalization, meaning sufficiently “white.”  It further stated that a woman could not be naturalized during her marriage if her husband was not eligible for citizenship.[194]  Therefore a woman could have been born sufficiently “white,” but she lost that privileged socially constructed status by marrying someone who was not “white” enough.  Notions of coverture requiring a wife’s status to follow her husband’s were thus intertwined with notions of racial inferiority to bar citizenship acquisition through naturalization.

Further, access to naturalization was controlled by access to immigration.  To be naturalized a person has to be admitted into the country, continue in a status that supports naturalization, and meet any set naturalization criteria.[195]  Spouse-based immigration status incorporated both the gendered notions of coverture and concepts of racial exclusion.[196]  The historical gender and racial-based restrictions on spouse-based immigration have been detailed elsewhere.[197]  The gendered and racially-based restrictions on citizenship access discussed here were in addition to restrictions on immigration based in gender and race.

The Legacy of Wives’ Acquisition of Citizenship Through Marriage

 Spouses of U.S. citizens no longer acquire citizenship through marriage and they do not have a constitutional right to do so.  The elimination of citizenship through marriage was grounded in the objective of removing gender subordination and establishing independent citizenship for women.  Ironically, this resulted in practical harm to women seeking to become U.S. citizens and to achieve family reunification.  Further, the spouse-based immigration system that followed included aspects of the coverture-like spousal subordination notions.[198]

The detriments of loss of derivative citizenship through marriage remain today.  There is a lay assumption that marriage to a U.S. citizen forms the basis for a relatively easy pathway to U.S. citizenship.  However, the road to citizenship for those married to U.S. citizens is often complicated, long, and filled with pitfalls. There are many non-citizen spouses who, today, would prefer citizenship upon marriage to a citizen, rather than the current arduous journey of becoming a citizen.

The spouse-based citizenship process particularly affects wives.  Statistically, spouse-based immigration is a significant component of immigration into the United States.  Overall, spouses of United States citizens comprised about twenty five percent of all immigrants legally admitted to the United States each year during the last quarter of the twentieth century.[199]  Further, women currently make up the majority of immigrating spouses.[200]

To become a U.S. citizen a person must first become a legal permanent resident.  There are numerous barriers to becoming and remaining a legal permanent resident through marriage to a U.S. citizen as detailed below.  If the spouse becomes a legal permanent resident she then has to wait three years before she can apply for naturalization and must meet the all the naturalization criteria.[201]

The citizen spouse controls the ability of the non-citizen spouse to immigrate and become a legal resident.  The general process for becoming a spouse-based permanent resident requires that the citizen spouse file a petition on behalf of the non-citizen spouse.[202]  The power to petition is the power to control immigration status.  The process for a citizen’s wife to become a legal permanent resident begins with the citizen husband.  The petitioning process puts coverture like control over the non-citizen spouse’s immigration status into her American citizen spouse’s hands.  Unless she meets an exemption based in spouse or child abuse,[203] she cannot petition for her status on her own.  Therefore, generally, the wives of U.S. citizens cannot become permanent residents unless their husbands decide to allow it and take the initiative to pursue it.[204]

Immigration authorities then determine whether the requisite spousal relationship exists.  The immigration authorities review the validity of the marriage. The immigration law as interpreted by the executive and judiciary has a particular view of who is a spouse.  The marriage must be legally valid, and not against public policy, and not entered into for the sole purpose of obtaining immigration status.

To determine whether the marriage is legally valid, the Bureau of Citizenship and Immigration Services (BCIS) will assess whether the marriage was valid in the place it was performed.  Certain marriages, even if legal in the place performed, are not recognized for “public policy” reasons.  Incestuous, polygamous and same sex marriages[205] are generally not recognized.[206]  Proxy marriages are barred by statute unless the marriage has been consummated.[207]  Even if a marriage is legal and not against public policy, it is not valid for immigration purposes if it was entered into solely for the purpose of obtaining immigration status.  The burden of proof is on the petitioner to demonstrate that the principal purpose of the marriage was to make a life together, that the marriage was “in good faith.”[208]

A full analysis of the complications of determining the validity of a marriage is beyond this article.  However one story gives illustration to the pitfalls of marriage validity that stand in the way of citizenship for wives.  Hota Ferschke was a Japanese national engaged to a U.S. marine stationed in Japan named Michael Ferschke.  Michael was a U.S. citizen.  Before they could marry, Michael was sent to Iraq.  While he was in Iraq, Hota discovered she was pregnant.  Michel arranged a proxy marriage with Hota in Japan, and he, in Iraq.  However, immigration authorities did not consider the marriage valid because it had not been consummated.  Therefore Hota could not be considered for legal permanent residency.  The sexual relations between Hota and Michael that resulted in the birth of their son occurred before, not after, the proxy marriage, and therefore did not meet the immigration notion of consummation.  Michael died in Iraq.  Not only could Hota not obtain permanent resident status, she even had difficulty obtaining a visitor’s visa to bring her son to the U.S. to visit his grandparents, his citizen father’s mother and father. [209]

Proving the validity of the marriage is only the first step.  If the marriage passes the various tests for validity and the husband’s petition is approved,[210] the next step is for the non-citizen wife to apply for admission, or if eligible, for adjustment of status.[211]  At this point the wife must demonstrate she is admissible and not excludable.[212] The immigration statute now includes extensive grounds for exclusion including grounds based on health, crime related background, security related grounds, and a long series of grounds having to do with more technical immigration violations.[213]

One technical exclusion ground, in particular, has been a significant barrier to spouse-based immigration. Mere unauthorized presence in the United States is a basis for barring admission.  The law has bars to the admission of any alien who was in the United States with permission and then overstayed the time, or who did not originally have a proper entry visa.  Those whose unauthorized presence was for more than a year are barred for ten years; those with 180 days but less than one year of unauthorized presence are barred for three years.[214]  A waiver may be granted for these bars upon proof of “extreme” hardship to a citizen spouse,[215] but proof of “extreme” hardship is extremely difficult because the hardship must be unusual, beyond that which would normally be expected, and not just the type of hardship experienced by most spouses in the circumstances.[216]

If the wife can pass the rigorous test of admissibility, she then becomes a legal resident either on a permanent or conditional basis. If the marriage is less than two years, the alien spouse becomes a resident on a conditional basis.[217]  If the condition is not removed after two years, then the resident status lapses and the alien spouse is an unauthorized alien.[218]  The removal of the condition generally requires a joint petition by both spouses, thus giving the husband more control over his wife’s immigration status.[219]

If the wife demonstrates she is admissible and becomes a permanent resident she is still subject to extensive grounds for deportation.[220]  It is beyond the scope of this article to detail the myriad intricacies of immigration law’s exclusion and deportation provisions, but two stories serve to illustrate how the wife of a U.S. citizen can fall afoul of them.

Mildred Gonzalez left Guatemala at the age of five. She came to the United States in 1989 with her mother who was granted asylum. Her mother applied for resident status based on the grant of asylum and included Mildred as her child on her application. Mildred’s mother’s status was granted. Mildred was denied because six weeks before she had married Eduardo Gonzalez, a U.S. citizen.  Her marriage to a U.S. citizen resulted in the determination that she was no longer defined as her mother’s child because she was married. Eduardo and Mildred had a citizen son, Eduardo Jr.  Eduardo Gonzalez was a petty officer with the U.S Navy and as he prepared to be deployed overseas, his wife Mildred faced deportation.[221]

Berly Feliz had entered the United States across the Mexican border.  Two years later, in 1996, she married Carlos Feliz, a United States citizen, and began the process to regularize her immigration status based on the marriage.  While this was pending, their citizen daughter Virginia was born. In 2004 when Berly Feliz went to the immigration office to renew her work authorization document granted as part of the processing, she was immediately arrested and deported based on an order that had been issued in absentia.  Berly did not even have a chance to say goodbye to Virginia or Carlos.  She was deported to Honduras.[222]

If a wife can negotiate the hurdles of becoming and staying a legal permanent resident for three years, she can then apply for naturalization to become a United States citizen.  Naturalization under current law cannot be denied because of race, sex or because the person is married.[223]  An applicant for naturalization must meet several criteria, including understanding of the English language, history and principles of the U.S. government, good moral character, residence and physical presence in the United States, allegiance to the United States and its constitution, and a showing that one is not opposed to government or law or favors totalitarian forms of government.[224]

Wives of citizens under today’s law therefore have a long road to citizenship with numerous potential pitfalls.   While the prior practice of a wife automatically assuming the citizenship of her husband was based in concepts of the subordination of women, it was a practical benefit for many.  Removal of derivative citizenship status for citizens’ wives was justified as establishing independent citizenship for women.  However, the immigration process that is a prerequisite to citizenship still has elements of spousal control and many legal barriers.  The removal of wife subordination did not mandate such a result.  An alternative could provide a clear independent pathway to citizenship for both the wives and husbands of U.S. citizens by affording citizenship through marriage to spouses of citizens who consent.  This would promote the interest of family unity over concerns about spousal control and the imposition of daunting technical barriers.   For example, the constitution of Bolivia provides that foreigners married to Bolivians acquire Bolivian nationality provided they manifest their consent and reside in the country.[225]  Even without providing for derivative citizenship for spouses, their pathway to citizenship could be more humane and better promote gender equality and family unity.  The law could provide for an immigration process for the spouses of citizens that removed oppressive technical barriers, allowed for self-petitioning, and provided waivers for grounds of inadmissibility based in the expected consequences of spousal separation in an intact family.

Conclusion

Both the loss and acquisition of citizenship by wives were historically based in state imposed gender norms that devalued women.  These norms infused into citizenship a waning domestic law concept that women as wives did not have independent identities or personal or political rights.

The acceptance of the notion that citizen women who married non-citizen men were unworthy of citizenship set the stage for broad legislative authority to determine that other citizens were unworthy as well.  The legacies of the gendered notions underlying loss of citizenship formed the basis for acceptance of broad legislative authority for stripping citizenship status.  While Supreme Court interpretations curtailed that authority in the late 1960’s, expatriation based in gender norms was never explicitly overruled.  Further, current debates about dual nationality and penalizing the participation of U.S. citizens in the life or institutions of other countries are grounded in the same antagonism to citizen association with the “foreign” that historically justified the imposition of subordinating gender norms into citizenship status.  The establishment of derivative citizenship for wives of citizens, while grounded in notions of female subordination, had a positive practical impact for many women.  The difficult pathway to citizenship for the spouses of citizens that replaced derivative citizenship undermines family unity. 

The historical and current legacies of wives’ loss and acquisition of citizenship  demonstrate an underlying conflict in the concepts of United States democracy and citizenship. One view of citizenship is of expansive inclusion and a democracy based in the inherent value and freedom of each individual.  This sees U.S. democracy as a growing egalitarian project that seeks to implement a society based on recognition of each person’s worth and individual dignity. The other view sees a need for a hierarchical restrictive citizenship that identifies some as inherently incapable of the rights and responsibilities of citizenship and thereby the subjects of justified removal or denial of citizenship status.  This envisions a society as grounded in notions of superiority of some and the incapacity of others for self-rule and democratic participation, with the concomitant justification for exclusion and subordination.  Correcting the restrictions on citizenship loss and acquisition historically grounded in gender norms would promote a concept of democratic citizenship based in the recognition of individual dignity and freedom.

 

[1] Professor of law, City University of New York, School of Law.  My thanks for the excellent research assistance of Jessica Massimi and Johan Byssainthe, the assistance of Betty Tabor, and the comments of Professors Ruthann Robson, Andrea McArdle and Penelope Andrews.

[2] Of course “citizenship is not just a matter of formal legal status; it is a matter of belonging, including recognition by other members of the community.”  Evelyn Nakano Glenn, Unequal Freedom: How Race and Gender Shaped American Citizenship and Labor, 52 (2009).  Marriage is still the basis for loss of citizenship for wives in some countries, often justified on the basis that the husband is the head of the family and all family members should have the same citizenship.  Rebecca J. Cook, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, 30 Va. J. Int’l L. 643(1990); Stephanie Palo, Still Citizens After Marriage: Exploring Violations of Women’s Nationality Rights, 30 Women’s Rts. L. Rep. 673 (2009).

[3] Full access to resources and rights often depend on the acquisition of citizenship in a nation state. In the United States there are numerous categories of aliens who are precluded from federally financed programs. Even legal permanent residents have limitations on their access to public programs. Janet M. Calvo, Alien Status Restrictions on Eligibility for Federally Funded Assistance Programs, 16 N.Y.U. Rev. L. & Soc. Change 395, 412-415 (1988); Janet M. Calvo, The Consequences of Restricted Health Care Access for Immigrants: Lessons from Medicaid and SCHIP, 17 Annals of Health Law 175, 176 (2008).

[4] T. Alexander Aleinikoff and Douglas Klusmeyer, Citizenship Practices for an Age of Migration, 42 (2002).  Janet M. Calvo. The Constitutional Right to Acquire Citizenship: Comparative Provision and Issues, in Law and Rights: Global Perspectives on Constitutionalism and Governance 165 (Penelope Andrews and Susan Bazilli, eds., 2008).

[5] Perez v. Brownell, 356 U.S. 44, 64-65 (1958) (Warren, J., dissenting). This article focuses on the constitutional protection for formal citizenship in the United States predominately through the lens of gender.  It is acknowledged that while protection of the status of citizenship is important, it is far from sufficient since formal citizenship does not always mean full access to the rights and responsibilities of a member of a society. Unfortunately, there is a myriad of historical and current instances of second-class citizenship imposed on people who clearly meet a constitutional norm, but who face discrimination because of gender, race, ethnicity, and sexual orientation.  For an example of more expansive notions of citizenship analyzed through the lens of gender see Samin Meer, Charlie Sever, Gendered Citizenship, Overview Report, BRIDGE, http://www.ids.ac.wk/bridge.

[6] U.S. Const. Art. I, §8.

[7] U.S. Const. Am. XIV.

[8] Jo Ellen Lind, Dominance and Democracy: The Legacy of Woman Suffrage for the Voting Right, 5 UCLA Women’s L.J. 103, 159-165, 169-174 (1994).

[9] Linda K Kerber, No Constitutional Right to be Ladies, 87-88, 98-100 (1998); Lind, id. at 159-165.

[10] Bradwell v. State of Illinois, 83 U.S. 130 (1872).

[11] Minor v. Happersett, 88 U.S. 162 (1874).

[12] GLENN, supra note 2, at 44-45.

[13] Bradwell, 83 U.S. 130 (holding that Illinois constitutionally denied law licenses to women, because the right to practice law was not one of the privileges and immunities guaranteed by the Fourteenth Amendment); See also Minor, 88 U.S. 162 (where the Supreme Court held that women were not entitled to suffrage because voting is not a privilege of citizenship.)

[14] C. Bredbenner, A Nationality of Her Own: Women, Marriage, and the Law of Citizenship, 63-64 (1998); See also 7 U.S. Dep’t of State, Foreign Affairs Manual, §1200, 1240, Appendix E: American Women Married to Aliens Between March 2, 1907 and September 22, 1922 (2008).

[15] Expatriation Act, ch. 2534, §3, 34 Stat. 1228, 1228-1229 (1907) (providing “[t]hat any American woman who marries a foreigner shall take the nationality of her husband. At the termination of the marital relation she may resume her American citizenship, if abroad, by registering as an American citizen within one year with a consul of the United States, or by returning to reside in the United States, or, if residing in the United States at the termination of the marital relation, by continuing to reside therein.”).

[16] Id.

[17] Act of Feb. 10, 1855, Ch. 71, §1, 10 Stat. 604 (1855).

[18] Janet M. Calvo, Spouse-based Immigration Laws: The Legacies of Coverture, 28 San Diego L. Rev. 593, 596-98 (1991); Janet M. Calvo, A Decade of Spouse-Based Immigration Laws: Coverture’s Diminishment, But Not Its Demise, 24 No. Ill. U.L. Rev. 153, 160-161 (2004).

[19] Calvo, A Decade of Spouse-Based Immigration Laws: Coverture’s Diminishment, But Not Its Demise, Ibid at 18, at 158; Bredbenneer, supra note 14, at 19, 56.

[20] Mackenzie v. Hare, 239 U.S. 299 (1915).

[21] Id at 305 (stating that “[t[he plaintiff was born and ever since has resided in the state of California. On August 14, 1909, being then a resident and citizen of this state and of the United States, she was lawfully married to Gordon Mackenzie, a native and subject of the kingdom of Great Britain. He had resided in California prior to that time, still resides here, and it is his intention to make this state his permanent residence. He has not become naturalized as a citizen of the United States and it does not appear that he intends to do so. Ever since their marriage the plaintiff and her husband have lived together as husband and wife. On January 22, 1913, she applied to the defendants to be registered as a voter. She was then over the age of twenty-one years and had resided in San Francisco for more than ninety days. Registration was refused to her on the ground that, by reason of her marriage to Gordon Mackenzie, a subject of Great Britain, she thereupon took the nationality of her husband and ceased to be a citizen of the United States.”).

[22] Mackenzie, 239 U.S 299.

[23] Id., at 312.

[24] Bredbenner, supra note 14 at 58-59.

[25] Nancy F. Cott, Marriage and Women’s Citizenship in the United States, 1830-1934, 103 American Historical Review 1440 at 1455 (1998).

[26] Bredbenner, supra note 14, at 58-59.

[27] Shanks v. Dupont, 28 U.S. 242, 246 (1830) (noting that “[m]arriage with an alien, whether a friend or an enemy, produce[d] no dissolution of the native allegiance of the wife.”   By the end of the 19th century, however, a few courts adopted the view that a woman’s nationality followed her husband’s.  See, e.g., Pequignot v. Detroit, 16 F. 211, 216 (C.C.E.D.Mich.1883). But see, e.g., Ruckgaber v. Moore, 104 F. 947, 948-949 (C.C.E.D.N.Y.1900) (focusing on the loss of citizenship while the woman resided abroad in her husband’s country).

[28] Bredbenner, supra note 14, at 57-60.

[29] Mackenzie, 239 U.S. 299, at 307-308.

[30] The administrative view prior to 1907 had been that citizenship loss occurred only when a woman who had married a non-citizen resided in her husband’s country and acquired that country’s citizenship by virtue of marriage and that there was a treaty between the U.S. and that country that recognized each other’s naturalization.  Charles Gordon, Stanley Mailman, Stephen Yale-Loehr, Immigration Law and Procedure  Part 7, §100.02 (3) (m) (2009).

[31] Bredbenner, supra note 14, 56-57 (acknowledging that the coverture concepts were diminishing and that views of women’s dependence informed the statute  but arguing that the primary  motivation for the 1907 law was part of government enactment of increasingly restrictive immigration and nationality laws).

[32] Cott, supra note 25 at 1463.

[33] Mackenzie, 239 U.S. 299, at 311.

[34] There is no indication he objected to her U.S. citizenship and there is evidence that he supported her registration to vote.  Kerber, supra note 9 at 41-42.

[35] Mackenzie, 239 U.S. 299.

[36] Mackenzie, 239 U.S. 299.

[37] Bredbenner, supra note 14, at 19-20.

[38] Act Concerning the Rights of American Citizens in Foreign States, ch. 248, 249, Preamble, 15 Statutes at Large 223, 224 (1868) (stating that “any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.”); see also 8 U.S.C. § 1481 note (2000) (quoting R.S. § 1999).

[39] But see Afroyim v. Rusk (where the majority and minority opinions regarding concepts of expatriation in early America differed.  In Afroyim, Justice Harlan stated in his dissent that “[i]t is appropriate to note at the outset what appears to be a fundamental ambiguity in the opinion for the Court.  The Chief Justice acknowledged that ‘actions in derogation of undivided allegiance to this country’ had ‘long been recognized’ to result in expatriation…; he argued, however, that the connection between voting in a foreign political election and abandonment of citizenship was logically insufficient to support a presumption that a citizen had renounced his nationality. It is difficult to find any semblance of this reasoning… in the approach taken by the Court today; it seems instead to adopt a substantially wider view of the restrictions upon Congress’ authority in this area. … it has assumed that voluntariness is here a term of fixed meaning; in fact, of course, it has been employed to describe both a specific intent to renounce citizenship, and the uncoerced commission of an act conclusively deemed by law to be a relinquishment of citizenship.”).  Afroyim v. Rusk, 387 U.S. 253, 270, fn 1. (1967) (Harlan, J., dissenting) (1967).

[40] Mackenzie, 239 U.S. 299 at 310 (stating that “[p]laintiff says, ‘Expatriation is evidenced only by emigration, coupled with other acts indicating an intention to transfer one’s allegiance.’ And all the acts must be voluntary, ‘the result of a fixed determination to change the domicil and permanently reside elsewhere, as well as to throw off the former allegiance, and become a citizen or subject of a foreign power.’ The right and the condition of its exercise being thus defined, it is said that the authority of Congress is limited to giving its consent. This is variously declared and emphasized. ‘No act of the legislature,’ plaintiff says, ‘can denationalize a citizen without his concurrence,’ …. ‘And the sovereign cannot discharge a subject from his allegiance against his consent except by disfranchisement as a punishment for crime,’ citing Ainslie v. Martin, 9 Mass. 454. ‘The Constitution does not authorize Congress to enlarge or abridge the rights of citizens,’ citing Osborn v. Bank of United States, 9 Wheat. 738, 6 L. ed. 204. ‘The power of naturalization vested in Congress by the Constitution is a power to confer citizenship, not a power to take it away. . . .”).

[41] Id. (stating that “[t]he 14th Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth declared by the Constitution to constitute a sufficient and complete right to citizenship.”) (citing United States v. Wong Kim Ark, 169 US 644 (1989)).

[42] Mackenzie, 239 U.S. at 310-311.

[43] Id.

[44] Id.

[45] Cott supra note 25 at 1462; Charles Gordon et al, supra note 30 at §100.02 (6)  See also U.S. Dep’t of State, 7 Foreign Affairs Manual, §1215, Loss and Restoration of U.S. Citizenship, (2008).

[46] Expatriation Act, ch. 2534, §3, 34 Stat. 1228, 1228-1229 (1907); See also 7 U.S. Dep’t of State, Foreign Affairs Manual, §1200, 1240, Appendix E: American Women Married to Aliens Between March 2, 1907 and September 22, 1922 (2008).

[47] Gordon et al, supra note 30 at §100.02 1(b)(iv)(v), (4).

[48] Id at sec. 100.02 1 (b) (iv); See also Perez v. Brownell, 356 U.S. 44 (1958) (Where Congress’s right to revoke U.S. citizenship for voting in a foreign election had been upheld by the Supreme Court).

[49] Gordon et al, supra note 30 at §100.02 1(b)(iv).

[50] In 1967, the Court expressly overruled Perez by a 5-4 vote in Afroyim. See Afroyim, 387 U.S. at 257 (Where the court stated that “[w]e reject the idea expressed in Perez that . . . Congress has any general power, express or implied, to take away an American citizen’s citizenship without his assent”); Id. at 262-63). Not a single justice suggested a return to Perez when the Court revisited the issue of expatriation in 1980. See Vance v. Terrazas, 444 U.S. 252 (1980).

[51] Infra note 58; See also Gordon et al, supra note 30 at §100.02 (2)(a)(v); See also Trop v. Dulles, 356 U.S. 86 (1958) (Where the Supreme Court held an expatriation statute unconstitutional in a five to four decision.  The statute provided that desertion from the armed forces in time of war resulted in citizenship loss.  The plurality opinion stated that this was a penal statute that imposed cruel and unusual punishment since the former citizen became stateless.).

[52] Perez v. Brownell, 356 U.S. 44 (1958).

[53] Id. at 49-51.

[54] Id. at 60.

[55] Id. at 69.

[56] Id. at 70, fn. 20.

[57] Id. at 61.

[58] Trop v. Dulles, 356 U.S. 86 (1958) (Where the Supreme Court for the first time invalidated a loss of nationality statute which provided for loss of nationality upon conviction for desertion from the armed forces of the United States during time of war. As in Perez, the vote was five-to-four: Chief Justice Warren’s plurality opinion, speaking for the four dissenters in Perez, found that the statelessness imposed on the expatriated citizens was a form of cruel and unusual punishment. Id., 356 U.S. at 91-104.  Justice Brennan’s swing vote concluded that the loss of nationality penalty was not rationally related to a demonstrated national need. Id., 356 U.S. 86 at 105. The four dissenters comprised the remainder of the Perez majority, and found the statute a reasonable and constitutional measure.  Id., 356 U.S. at 114); Nishikawa v. Dulles, 356 U.S. 129 (1958) (Where the court declined to reach the issue of whether loss of nationality for military service of a foreign state was constitutional and instead ruled that the government had not established, with the requisite certainty, that the military service was voluntary); Kennedy v. Mendoza-Martinez, 372 U.S. 144, (1963) (Where the court struck down a statute prescribing loss of nationality as a consequence for evading military service.  The majority found the statute to be punitive and defective because the penalty was imposed without observing the constitutional safeguards relating to penal sanctions); Schneider v. Rusk, 377 U.S. 163 (1964) (Where the court struck down a loss of nationality statute that provided for the expatriation of a naturalized citizen who resided in his native country for a specified number of years.  The court found this statute to be an invalid discrimination against naturalized citizens); Marks v. Esperdy, 377 U.S. 214 (1964) (where the  Supreme Court affirmed without opinion a lower court decision, Marks v. Esperdy, 315 F.2d 673 (2d Cir. 1963), upholding the expatriation of a person who had served in the armed forces in Castro’s Cuba).

[59] Afroyim 387 U.S. 253 (1967).

[60] Id. at 277.

[61] Id. at 268.

[62] Id.

[63] Id.

[64] Id.

[65] Vance v. Terrazas, 444 U.S. 252 (1980).

[66] Id.

[67] Id at 269-270.

[68] Terrazas v. Haig, 653 F.2d 285, 288 (7th Cir. 1981).

[69] Id.

[70] The United States Supreme Court upheld the Expatriation Act of 1907 noting that “the identity of husband and wife is ancient principle of our jurisprudence.” Mackenzie, 239 U.S. at 311.  By 1998, in the matter of Miller v. Albright, 523 U.S. 420 (1998), the U.S. Supreme Court recognized women’s political struggles with expatriation and citizenship noting that: “The statutory rule that women relinquished their United States citizenship upon marriage to an alien encountered increasing opposition, fueled in large part by the women’s suffrage movement and the enhanced importance of citizenship to women as they obtained the right to vote. In response, Congress provided a measure of relief. Under the 1922 Cable Act, marriage to an alien no longer stripped a woman of her citizenship automatically. But equal respect for a woman’s nationality remained only partially realized. A woman still lost her United States citizenship if she married an alien ineligible for citizenship; she could not become a citizen by naturalization if her husband did not qualify for citizenship; she was presumed to have renounced her citizenship if she lived abroad in her husband’s country for two years, or if she lived abroad elsewhere for five years. A woman who became a naturalized citizen was unable to transmit her citizenship to her children if her non-citizen husband remained alive and they were not separated. See In re Citizenship Status of Minor Children Where Mother Alone Becomes Citizen Through Naturalization, 25 F.2d 210, 210 (NJ 1928) (“the status of the wife was dependent upon that of her husband, and therefore the children acquired their citizenship from the same source as had been theretofore existent under the common law”); No restrictions of like kind applied to male United States citizens.” Id at 463.

[71] See infra at notes 95, 118, 125.

[72] INS Interpretation 324.1(a)(4), Loss of Citizenship By Marriage. http://www.uscis.gov/portal/site/uscis/ (follow “Laws,” then “Interpretations) (last visited Feb. 19, 2010).

[73] Rocha v. I.N.S., 351 F.2d 523 (1st Cir. 1965).

[74] Id. at 524.

[75] Rocha v. I.N.S., 450 F.2d 946 (1st Cir. 1971).

[76] INS Interpretation 324.1(a)(4), Loss of Citizenship By Marriage. http://www.uscis.gov/portal/site/uscis/ (follow “Laws,” then “Interpretations) (last visited Feb. 19, 2010).

[77] Id.

[78] Id.

[79] Rev. Rul. 75-357, 1975-2 I.R.B. 81.

[80]  IRS TAM 7605250090 A (1976), 1976 WL 39820; for a discussion of current tax rules see Joel Kuntz and Robert Peroni, U.S. International Taxation, U.S. Int’l Tax B1.02 (1), 2000 WL 530096 (last updated 2009).

[81] See infra, notes 116, 117.

[82] Bredbenner, supra note 14, at 63-64.

[83] Id., at 63.

[84] Id., at 57-58.

[85] Expatriation Act, ch. 2534, §2, 34 Stat. 1228, 1228-1229 (1907).

[86] Cott, supra note 25 at 1462.

[87] Bredbenner, supra note 14 at 63.

[88] Relative to Citizenship of American Women Married to Foreigners, Hearings before the H. Comm. on Immigr. and Nat., 65th Cong., 2d sess. (1917).

[89] H.R. 4049, 65th Cong., 2d sess. (1917).

[90] Bredbenner, supra note 14, at 73; Hearings, supra note 87 at 33.

[91]  Bredbenner, supra note 14 at 74.

[92] Id., at 86.

[93] Id., 71-72; Hearings, supra note 88 at 6.

[94] Kerber, supra note 9 at 42.

[95] The Cable Act (“Married Women’s Independent Nationality Act”), ch. 411, §3, 42 Stat. 1021 (1922); Bredbenner, supra note 14 at 89.

[96] Leti Volpp, Divesting Citizenship: On Asian American History and the Loss of Citizenship Through Marriage, 53 UCLA L.Rev. 405 (2005).

[97] See e.g., Martha Gardner, The Qualities of a Citizen, Women, Immigration and Citizenship, 1870-1965 (2005); GLENN, supra note 2.

[98] See infra notes 117-124.

[99] An Act to Establish a Uniform Rule of Naturalization, ch. 3, §1, 1 Stat 103 (1790).

[100] Volpp, supra note 96, at 435-438; Ian F. Haney Lopez, White by Law: The Legal Construction of Race (1996). Gardner supra note 97 at 142-146. See INS Interpretation 324.1(a)(4), Loss of Citizenship By Marriage. http://www.uscis.gov/portal/site/uscis/ (follow “Laws,” then “Interpretations) (last visited Feb. 19, 2010). In cases of mixed races, the applicant had to establish that he or she was preponderantly of an eligible race.  It is an understatement to say that race was socially constructed.  For example ethnicities such as Irish, Jews and Italians were at one time considered separate races and then were assimilated into the category of “white.”  See Gardner supra note 97 at 10.

[101] Dred Scott v. Sandford, 60 U.S. 393 (1856).

[102] The Naturalization Act of July 14, 1870, ch. 245, §7, 16 Stat 256 (1870).

[103] The Chinese Exclusion Act of May 6, 1882, ch. 126, §14, 22 Stat 58 (1882).

[104] Ozawa v. United States, 260 U.S. 178 (1922).

[105] United States v. Thind, 261 U.S. 204 (1923).

[106] Toyota v. United States, 268 U.S. 402 (1925).

[107] Wong Kim Ark, 169 U.S. 649 (1898); See also State v. Kosai 234 Pac. 5 (1925) (Where the court found that children born in the U.S. to Japanese parents were citizens even though their parents could not become citizens).

[108] Wong Kim Ark, 169 U.S. 649 (1898).

[109] Immigration and Nationality Act of June 27, 1952, ch. 477, § 207, 66 Stat. 163 (1952).

[110] Nationality Act of 1940, §201, 54 Stat. 1137, 1140 (1940).

[111] Act of Dec. 17, 1943, ch. 344, §1, 57 Stat. 601 (1943).

[112] 8 U.S.C. §1422 (2006).

[113] See infra note 184.

[114] The Cable Act (“Married Women’s Independent Nationality Act”), ch. 411, §3, 42 Stat. 1021 (1922).

[115] Id.

[116] Act of March 3, 1931 ch. 442, §4 (a), 46 Stat. 1511 (1931).

[117] Volpp, supra note 96 at 443-444; Act of March 3, 1931 ch. 442, §4 (a), 46 Stat 1511 (1931).

[118] The Cable Act (“Married Women’s Independent Nationality Act”), ch. 411, §3, 42 Stat. 1021 (1922).

[119] Volpp, supra note 96 at 410.

[120] Id., at 433.

[121] Id., at 434-435.

[122] Ex Parte Fung Sing, 6 F. 2d 670 (1925); Cott, supra note 25, at 1466.

[123] Thind, 261 U.S. 204.

[124] Cott, supra note 25, at 1467.

[125] Gordon et al, supra note 30 at §97.07; Act of July 3rd 1930, ch. 835, 46 stat.854 (1930); The Cable Act (“Married Women’s Independent Nationality Act”), ch. 411, §3, 42 Stat. 1021 (1922); Act of June 25, 1936 (“An Act to Repatriate Native-Born Women Who Have Heretofore Lost Their Citizenship By Marriage to An Alien) ch. 801, 49 Stat. 1917 (1936); Nationality Act of 1940, §201, 54 Stat. 1137, 1140 (1940); The Immigration and Nationality Technical Corrections Act of 1994, 108 Stat. 4305 (1994).

[126] 8 U.S.C. §1434 (c) (2006).

[127] 8 U.S.C. §1434 (b) (2006).

[128] INS Interpretation 324.1(a)(4), Loss of Citizenship By Marriage. http://www.uscis.gov/portal/site/uscis/ (follow “Laws,” then “Interpretations) (last visited Feb. 19, 2010).

[129] Loving v. Virginia, 388 U.S.1, 12 (1967); Erwin Chemerinsky, Constitutional Law, Principles and Policies (2006)  at 798-800.

[130] Chemerinsky, ibid at 798-800. Yet, the Supreme Court, in the context of heritage citizenship, upheld gender discrimination that favored out of wedlock mothers as versus fathers by affording citizenship to their children on different criteria. Nguyen v. I.N.S., 533 U.S. 53 (2001).

[131] However, citizenship through descent is not similarly protected because it is established by statute and not mentioned in the Constitution.  See Rogers v. Bellei, 401 U.S. 815, 836 (1971) (Where the court held that a “[s]tatute providing that a person who acquires United States citizenship by virtue of having been born abroad to parents, one of whom is an American citizen, shall lose his citizenship unless he resides in the United States continuously for 5 years between ages of 14 and 28 had no constitutional infirmity in its application to individual who was born abroad, who was not naturalized in the United States, and who had not been subject to jurisdiction of the United States”).

[132] 8 U.S.C. §1481 (2006).

[133] Immigration and Nationality Act Amendments of 1986, §18, 100 Stat. 3655 (1986).

[134] 8 U.S.C. §1481 (a) (1) (2006).

[135] 8 U.S.C. §1481 (a) (2) (2006).

[136] 8 U.S.C. §1481 (a) (3) (2006).

[137] 8 U.S.C. §1481 (a) (4) (a) (2006).

[138] 8 U.S.C. §1481 (a) (4) (b) (2006).

[139] 8 U.S.C. §1481 (a) (5) (2006).

[140] 8 U.S.C. §1481 (a) (6) (2006).

[141] 8 U.S.C. §1481 (a) (7) (2006).

[142]United States Department of State, Bureau of Consular Affairs, Advice About Possible Loss of Citizenship and Dual Nationality, available at http://travel.state.gov/law/citizenship/citizenship_778.html.

[143] Interpreter Releases 799 (July 23, 1990); 67 Interpreter Releases 1092 (October 1, 1990).

[144] 22 C.F.R. § 50.40(a).

[145] Id.

[146] United States Department of State, Bureau of Consular Affairs, Advice About Possible Loss of Citizenship and Dual Nationality, available at http://travel.state.gov/law/citizenship/citizenship_778.html.

[147] Id.

[148] Id.

[149] Id.

[150] 8 U.S.C. §1481 (a) (3) (2006); See also 7 U.S. Dep’t of State, Foreign Affairs Manual §1211, Loss and Restoration of U.S. Citizenship, (2008).

[151] 8 U.S.C. §1481 (a) (7) (2006); See also 7 U.S. Dep’t of State, Foreign Affairs Manual §1211, Loss and Restoration of U.S. Citizenship, (2008).

[152] See also 7 U.S. Dep’t of State, Foreign Affairs Manual §1211, Loss and Restoration of U.S. Citizenship, (2008); See also United States Department of State, Bureau of Consular Affairs, Advice About Possible Loss of Citizenship and Dual Nationality, available at http://travel.state.gov/law/citizenship/citizenship_778.html. An individual may also specifically renounce U.S. citizenship. Pursuant to 8 U.S.C. §1481(a)(5) renunciation can only occur outside the United States. See also 7 U.S. Dep’t of State, Foreign Affairs Manual, §1200, Loss and Restoration of U.S. Citizenship (2008).  For purposes of this provision, the State Department has issued a form, “Oath of Renunciation of the Nationality of the United States” (the “oath”) which facilitates formal renunciation. The renunciant must swear that “I desire to make a formal renunciation of my American nationality, as provided by section 349(a)(5) of the Immigration and Nationality Act [8 U.S.C. § 1481(a)(5)] and pursuant thereto I hereby absolutely and entirely renounce my United States nationality together with all rights and privileges and all duties of allegiance and fidelity thereunto pertaining.” (emphasis added). This oath is also accompanied by a “Statement of Understanding” (the “statement”), which the renunciant must also sign. The statement declares “[u]pon renouncing my citizenship I will become an alien with respect to the United States, subject to all the laws and procedures of the United States regarding entry and control of aliens,” that “If I do not possess the nationality of any country other than the United States, upon my renunciation I will become a stateless person and may face extreme difficulties in traveling internationally and entering most countries.” (emphasis added).

[153] H.R. 3938, § 703 109th Cong. (1st Sess. 2005).

[154] T. Alexander Aleinkoff, Between Principles and Politics:  The Direction of U.S. Citizenship in From Migrants to Citizens:   Membership in a Changing World, 137-41 (T. Alexander Aleinikoff & Douglas B. Klusmeyer eds.  2000).

[155] T. Alexander Aleinkoff and Douglas B. Klusmeyer, Plural Nationality:  Facing the Future in a Migratory World  in  Citizenship Today: Global Perspectives and Practices, 63-87 (T. Alexander Aleinikoff & Douglas B. Klusmeyer Eds.  2001).

[156] See David Martin’s view urging the acceptance of dual nationality if accompanied by a non-exclusive oath of allegiance to promote the notion of civic solidarity. David A. Martin Warner-Booker Distinguished Professor of International University of Virginia School of Law Chair Lecture, October 27, 2004 http://www.law.virginia.edu/html/alumni/uvalawyer/sp05/martin_lecture.htm.

[157] Dual Citizenship, Birthright Citizenship, and the Meaning of Sovereignty: Hearing Before the Subcomm. on Immigration, Border Security, and Claims of the H. Comm. on the Judiciary, 109th Cong. 33 (2005) (statement of Dr. John Fonte, Senior Fellow, The Hudson Institute); testimony and statement available at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_house_hearings&docid=f:23690.pdf.

[158] Dual Citizenship, Birthright Citizenship, and the Meaning of Sovereignty: Hearing Before the Subcomm. on Immigration, Border Security, and Claims of the H. Comm. on the Judiciary, 109th Cong. 39 (2005) (statement of Dr. John Fonte, Senior Fellow, The Hudson Institute)., testimony and statement available at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_house_hearings&docid=f:23690.pdf.

[159] Id. at 39.

[160] Id. at 40.

[161] Id. at 43.

[162] Id. at. 84 (statement of Dr. John Fonte, Senior Fellow, The Hudson Institute).

[163]  Id at 88-89; H.R. 3738 § 702, 109th Cong. (1st Sess. 2005) proposed these sanctions.  It was proposed by Representative Hayworth and had thirty-three co-sponsors.

[164] Id., at 72, 74 (testimony and statement of Peter Spiro, Associate Dean for Faculty Development and Dean and Virginia Rusk Professor of International Law, University of Georgia School of Law) testimony and statement available at: http://frwebgate.access.gpo.gov/cgi-.bin/getdoc.cgi?dbname=109_house_hearings&docid=f:23690.pdf.

[165] Id at 73.

[166] Id.

[167] Id.

[168] PBS Newshour with Jim Lehrer, Clinton: U.S. Committed to Haiti’s Recovery, January 14, 2010, video and transcript available at http://www.pbs.org/newshour/bb/weather/jan-june10/clinton_01-14.html.

[169] Shaila Dewan, “Scattered Émigrés Haiti Once Shunned Are Now a Lifeline,” The New York Times, February 3, 2010, available at: http://www.nytimes.com/2010/02/04/us/04diaspora.html?scp=1&sq=haiti%20welcomes%20back%20those%20who%20left&st=cse.

[170] Calvo, supra note 4, at 168.

[171] Act of Feb. 10, 1855, ch. 71, §1, 10 Stat. 604 (1855).

[172] Bredbenner, supra note 14, Chapter 1

[173] Bredbenner, ibid at 19.

[174] Ibid ., at 21 (quoting from the case of Elise Lebret, John Bassett Moore, History and Digest of International Arbitrations to which the United States has been a Party, Vo. 3, 2499 (Washington, D.C.: GPO., 1898)).

[175] Gardner, supra note 97 at  24-30.

[176] United States ex rel Nicola v. Williams, 173  F 627; In re Nicola, 184 F. 322 (2nd Cir. 1911).

[177] Gardner, supra note 97, Chapter 2 (discussing that this was not always the result.  There was resistance to the derivative citizenship of some women because of concerns about prostitution, common law marriage, and picture brides).  In 1917 the concern about prostitution was incorporated into the law.  Women who were deemed prostitutes did not acquire citizenship even if married to American citizens.  See Ex parte Bigney, 285 F. 669 (D.Or.1923).

[178] Bredbenner, supra note 14, 20-21.

[179] Cott, supra note 25 at 1456-1457.

[180] Bredbenner, supra note 14, at 72; Hearings, supra note 88 at 8.

[181] Cott, supra note 25 at 1457.

[182] Gardner, supra note 97 at  15-19.

[183] Bredbenner, supra note 14, at 21-22 and Chapter 3.

[184] The Cable Act (“Married Women’s Independent Nationality Act”), ch. 411, §3, 42 Stat. 1021 (1922).

[185] Meyer v. Nebraska, 262 U.S. 390 (1923); See also Troxel v. Granvil, 530 U.S. 57 (2000) (Where the court noted that “[t]he interest of parents to the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court.  More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399 (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own”).

[186] Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925); See also Troxel v. Granvil, 530 U.S. 57 (2000) (Where the court noted that “[i]n Pierce v. Society of Sisters, 268 U.S. 510 (1925), we again held that the ‘liberty of parents and guardians’ includes the right ‘to direct the upbringing and education of children under their control.’ We explained in Pierce that ‘[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.’ Id., at 535, 45 S.Ct. 571. We returned to the subject in Prince v. Massachusetts, 321 U.S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’” Id., at 166, 64 S.Ct. 438.).

[187] Erwin Chemerinsky, Constitutional Law, Principles and Policies supra note 129 at 798.

[188] Loving v. Virginia, 388 U.S. 1, 12 (1967) (Where the court struck down all anti-miscegenation laws, noting that “[m]arriage is one of the ‘basic civil rights of man, fundamental to our very existence and survival…’. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State”). Chemerinsky, supra note 187 at 798-800

[189] Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (Where the Supreme Court held that an ordinance limiting occupancy of a dwelling unit to members of a single nuclear family deprived appellant of her liberty in violation of the Due Process Clause of the Fourteenth Amendment.  The court noted that “[w]hen the government intrudes on choices concerning family living arrangements, the usual deference to the legislature is inappropriate, and the Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation”).

[190] Chemerinsky, supra note 129 at 798-799, 806.

[191] Cott,  supra note 25 at 1465.

[192] The Cable Act (“Married Women’s Independent Nationality Act”), ch. 411, §1, 42 Stat. 1021 (1922); “(T)he right of any woman to become a naturalized citizen of the United States shall not be denied or abridged because of her sex or because she is a married woman.”

[193] United States v. Cohen, 179 F. 834 (2d Cir. 1910);  In re Guary, 271 F. 968 (S.D.N.Y. 1921);  In re Rionda, 164 F. 368 (S.D.N.Y. 1908). Cf.  Pintsch Compressing Co. v. Bergin, 84 F. 140 (D. Mass. 1897);  In re Langtry, 31 F. 879 (D. Cal. 1887) .

[194] The Cable Act (“Married Women’s Independent Nationality Act”), ch. 411, §3, 42 Stat. 1021 (1922).

[195] The Constitution provides that Congress has the authority to set the criteria for naturalization.  These criteria have changed over time.  See 8 U.S.C. §1481 (2006).

[196] Calvo, A Decade of Spouse-Based Immigration Laws: Coverture’s Diminishment, But Not Its Demise, supra note 18; Jennifer M. Chacón, Loving Across Borders: Immigration Law and the Limits of Loving, 2007 Wis. L.Rev. 345 (2007).

[197] Id., Gardner supra note 97 at 223-231.  See also, Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (2004).

[198] Calvo, supra note 18.

[199] Frank Bean, American’s Newcomers, 183, figure 8.2 (2003).

[200] Statistics from the USDHS suggests that spouse-based immigration is predominantly female;  the number of married women obtaining legal permanent resident status in the fiscal year of 2008 was 360, 753, and the number of  women obtaining legal permanent resident status in the fiscal year of 2008 as immediate relatives of United States Citizens was 292, 511.  See The Department of Homeland Security, Office of Immigration Statistics’ 2008 Yearbook of Immigration Statistics, Tables 8 and 9, available at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2008/ois_yb_2008.pdf; See also http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2008/table08.xls, http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2008/table09.xls.

See also http://www.immigration.gov/graphics/aboutus/repsstudies/Mobrept.htm News Release: Reports to Congress on “Mail-Order Bride” Businesses.

[201] 8 U.S.C. §§1430(a), 1427, 1423, 1424, 1425 (2006).

[202] 8 U.S.C. §§ 1154(a)(1)(A)(i), 1154(a)(1)(B)(i) (2006); 8 U.S.C. § 1154 (setting the procedure for granting immigrant status); 8 U.S.C. § 1154(a) (requiring a petitioning procedure); 8 U.S.C. § 1154(a)(1)(A)(i) (stating “any citizen of the United States claiming that an alien is entitled to … an immediate relative status under section 1151(b)(2)(A)(i) of this title may file a petition with the Attorney General for such classification”); Calvo, A Decade of Spouse-Based Immigration Laws: Coverture’s Diminishment, But Not Its Demise, supra note 18, at 156.

[203] 8 U.S.C. §§ 1154(a)(1)(A)(iii); 1154(a)(1)(B)(ii)(I) (2006).

The language of the exception requiring the citizen or resident to file a petition for a spouse is the same in 8 U.S.C. §1154(a)(1)(A)(iii) (2006) relating to spouses of United States Citizens and 8 U.S.C. §1154(a)(1)(B)(ii)(I) (2006) relating to spouses of permanent residents:

[I]f the alien demonstrates to the Attorney General that – (aa) the marriage or the intent to marry the United States citizen was entered into in good faith by the alien; and (bb) during the marriage or relationship intended by the alien to be legally a marriage, the alien or a child of the alien has been battered or has been the subject of extreme cruelty perpetrated by the alien’s spouse or intended spouse.

8 U.S.C. § 1154(a)(1)(B)(ii)(I) (2006).

[204] Calvo,  A Decade of Spouse-Based Immigration Laws: Coverture’s Diminishment, But Not Its Demise, supra note 18, at 188.

[205] Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982).

[206] Sarah Ignatius & Elisabeth Stickney, Immigration Law and the Family,  4-22.

[207] 8 U.S.C. §1101(a) (35) (2006)  However, the Foreign Affairs Manual permits the issuance of a visitor’s visa to an alien married by proxy to come to the United States to consummate the marriage. 9 FAM n.10.1to 22 CFR 42.41.

[208] Lutwak v. U.S. 344 US 604 (1953); Sarah Ignatius & Elisabeth Stickney, Immigration Law and the Family, 4-28 footnote 2 .

[209] Kristin Hall, Immigration Law Rues Marine’s Marriage Invalid. http://www.leatherneck.com/forums/showthread.php?t=89294; In Their Boots, Second Battle, http://www.intheirboots.com/itb/episodes/season-2/second-battle.html; Robert Wilson, Marine’s son, wife leaves U.S., Knoxville News Sentinel, Jan. 6, 2010,

http://www.knoxnews.com/news/2010/jan/06/marines-son-wife-leave-us/?partner=yahoo_feeds.

[210] See Immigration and Naturalization Service Form I-130, Petition for Alien Relative; 8 C.F.R. §204.2 (2006).

[211] 8 U.S.C. §§1154, 1255 (2006).

[212] 8 U.S.C. §1182 (a) (2006).

[213] 8 U.S.C. §1182 (a) (2006).

[214] 8 U.S.C. §1182 (a)(9)(B)(i)(I) & (II) (2006).

[215] 8 U.S.C. §1182 (a)(9)(B)(v) (2006).

[216]In Re Luis Felipe Cervantes-Gonzalez, 22 I. & N. Dec. 560.

[217] 8 U.S.C. §1186 (a)(1) (2006).

[218] 8 U.S.C. § 1186a(c) (2006).

[219] 8 U.S.C. §§ 1186a, 1186a(c) (4) (2006); Sarah Ignatius & Elisabeth Stickney, Immigration Law and the Family ch. 5.

[220] 8 U.S.C. § 1227 (2006).

[221] Thelma Gutierrez & Wayne Drash, U.S. sailor: Don’t deport my wife, CNN, Oct. 3, 2007, http://www.cnn.com/2007/US/10/03/military.deportation/index.html; see also Eduardo Gonzalez, Second Class Petty Officer Air Warfare, U.S. Navy, Testimony before the House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law, Sept. 6, 2007, http://judiciary.house.gov/media/pdfs/Gonzalez070906.pdf.

[222] Nina Bernstein, A Mother Deported, and a Child Left Behind, N.Y. Times, Nov. 24, 2004, § A, at A1.

[223] 8 U.S.C. § 1422 (2006).

[224] 8 U.S.C. §§ 1424, 1427 (2006).

[225] Const. of Bolivia, Tit. 3, Ch. 1, art. 38.   Constitutional citation translated and reprinted from I-XX Constitutions of the Countries of the World (Oceana Publications) available at:  http://www.oceanalaw.com, (Dr. Rainier Grote, Dr. Rudiger Wolfrum and Gisbert H. Flanz, eds., 2006). An alternative is also suggested by Karen Knop who notes the problems caused for families when family members are prevented from having the same nationality and argues for a relational nationality that would determine the relationships to be protected through nationality including allowing multiple nationalities for families.  Karen Knop, Relational Nationality:  On Gender and Nationality in International Law, In Citizenship Today: Global Perspectives and Practices, 89-118 (T. Alexander Aleinikoff & Douglas B. Klusmeyer eds.) (2001).

 

 

The Supreme Court’s Tie in U.S. v. Texas Harms New York

Today, June 23, 2016, the U.S. Supreme Court issued an Order merely stating that the Fifth Circuit’s judgment in U.S. v. Texas was affirmed by an equally divided Court.

There was no explanation. There were no opinions issued on the multiple serious and important questions raised in the case.

However, this order allows the continuance of  the nationwide preliminary injunction that prevents the Department of Homeland Security from implementing the DAPA, expanded DACA guidance explained in my prior post.   There are deep disappointments and consequences for those individuals who would have benefited through DAPA/expanded DACA.  But, also, as explained in my prior post, New York State and City (and other states and localities) are significantly harmed by this decision.  The case now returns to the district court in Texas.

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Waiting for the decision in U.S. v. Texas: Its impact on New York State and City

By the end of June, the U.S. Supreme Court is expected to decide the U.S. v. Texas case.

The state of Texas claimed that it was harmed by an administrative guidance from the federal Secretary of Homeland Security that designated as eligible for “deferred action” certain parents of minor U.S. citizens and permanent residents and an additional group of non-citizens who came to the country as children because Texas would have increased drivers’ license processing costs for that population.

“Deferred action” is the long-standing designation that immigration authorities use to indicate that removal (sometimes called deportation) proceedings will not be initiated (i.e. deferred) against certain non-citizens for a temporary time period.   However, the state of New York joined a number of other states, and Mayor of New York City joined a number of localities in Amicus (friends of the court) briefs that argued the contrary; that the guidance provided concrete financial, social and public safety benefits to states and localities. In the view of New York State and City, if the Supreme Court’s decision favors Texas, New York and other states will be significantly harmed.  Further, these states asserted that Texas brought the lawsuit not because it was suffering any real harm, but because it had a political goal it could not achieve through democratic means, i.e. that some Texas public officials opposed the expansion of deferred action for political reasons, and not because of concerns about the cost of drivers’ license processing.

To understand the consequences of this case for New York State and City and other states and localities requires some background on the administrative immigration system, and the issues before the Supreme Court. The Secretary of Homeland Security issued three related guidance memorandums about immigration enforcement.   One memo designated three priorities for expenditure of the agency’s limited resources afforded by Congress for the purpose of the removal of non-citizens. The first priority is non-citizens who are threats to national security including those suspected of terrorism, border security (those apprehended at ports or the border) and public safety, including those convicted of serious crimes.   Second priority includes persons convicted of other crimes and recent immigration law violators. Third priority includes those who have final orders of removal. This guidance memo was not challenged as there is general agreement that an agency has the legal discretion to set priorities and to utilize its limited resources to achieve those priorities. The resources available allow Homeland Security to remove about four hundred thousand non-citizens a year, while there are an estimated eleven million undocumented non-citizens in the country. It is inevitable, therefore, that there will be significant numbers of undocumented non-citizens residing in states who would not be the target of immediate immigration enforcement. Texas explicitly did not challenge this memorandum, thereby conceding that the federal government had the authority to allow non-citizens to remain in the U.S. and in Texas.

800px-Sl-shadowTwo other memorandums added transparent administrative direction about how to handle certain subsets of non-citizens who do not fall into these enforcement priorities and are at the lowest priority level. They both addressed the implementation the long-standing immigration administrative practice of internal directives designating certain undocumented non-citizens as deferred action based on various humanitarian criteria. A 2012 memo entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” set criteria for deferred action for certain non-citizens who had entered the U.S. as children.  This guidance known as DACA applies to those who entered the U.S before 2007 when under the age of sixteen, who were under 31 in 2012 and meet additional educational and public safety criteria.   This memorandum was not challenged and therefore DACA continues. Nationwide 636,324 non-citizens were designated DACA as of December 2014. The Migration Policy Institute estimates 76,000 non-citizens are DACA eligible in New York.

The challenged guidance memo was issued in 2014 and is entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents.” It expanded DACA by considering non-citizens who entered up to 2010 as children regardless of their current age if they met all other criteria, and by designating the deferred action time to three instead of two years. It further directed a process similar to DACA for deferred action for certain parents of U.S. citizen or permanent resident children who had continuously resided in the U.S. since January 1, 2010, were not enforcement priorities, and did not have other adverse factors making discretion inappropriate.  This is called DAPA and also carries a three-year time designation. DAPA could potentially apply to 3.8 million non-citizens nationwide, seventy percent of whom have resided in the U.S. for at least ten years. The Migration Policy Institute estimates that DAPA could apply to 231,000 non-citizens in New York.

Both deferred action memorandums state that they are setting forth policy for the exercise of prosecutorial discretion and deferred action within the context of current law, and that they do not confer any substantive right, immigration status, or pathway to citizenship. They, like other administrative guidance, are subject to change as a matter of administrative discretion.   The memos also note that pursuant to a federal statute and long standing federal regulation established under that statutory authority, those with deferred action can apply for employment authorization.   Non-citizens designated as employment authorized can then apply for a social security number for the purposes of employment.

New York State joined other states in asserting that states are economically benefited when these non-citizens are designated as deferred action and employment authorized. Persons who are employment authorized with work based social security numbers have taxes deducted from their salaries with each paycheck. The taxes deducted include state and local as well as federal income taxes, thereby adding to state and local budgets. Further, affording employment authorization allows individuals to utilize their skills and obtain work that maximizes their income thereby adding to each state’s economy. Studies of those with the current unchallenged DACA designation demonstrate the increased economic contributions that these non-citizens have made.   Additionally, the states asserted that state costs to support citizen and resident children would diminish in two ways. First, parents would be better able to economically support their children and the children would thereby not be economically eligible for social service benefits. Second, the states would not face foster care costs for citizen or resident children whose parents are deported.

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An Amicus brief by local officials including the Mayor of New York City made similar arguments.   This brief stated that New York State would receive more than $85.5 million annually in additional tax revenues if the DACA and DAPA guidance memos were fully implemented, leading to an estimated $35 million in additional funds for New York City alone.  An Amicus brief by professional economists and scholars presented studies and analysis that demonstrated the economic benefit to states and localities, and additionally demonstrated that work authorization linked to deferred action would not have an adverse effect on native born or currently authorized immigrant workers.

The Mayors’ brief also complained that the nation wide injunction issued by the Texas district judge and affirmed by the Fifth Circuit caused serious detriment to localities. The Mayors’ brief asserted that the guidance would result in over $800 million in additional economic benefits to state and local governments and that the court injunction that prevented its implementation resulted in a daily loss of $100,000 in tax revenue for New York City alone. The localities complained that the nationwide injunction prevented any court from considering their considerable harms from the injunction, while giving credence to the alleged minimal harm to Texas of increased drivers’ license processing fees. Local governments in Texas representing twenty-six percent of the Texas population joined the Mayor of New York and others in this brief. The brief argued that the court should not allow Texas standing to seek a nation wide injunction that gave Texas the right to request the termination of federal policies in every locality in the country thereby disregarding the harms to thousands of localities. They also argued that the scope of the injunction was much too broad as it applied to more than the asserted harm since Texas only complained of administrative costs in Texas.

The New York and other states’ and Mayors’ briefs also argued that the guidance would improve public safety through greater interaction between law enforcement and immigrant communities by removing the fear that interaction with local police would lead to deportation.   This view was also detailed and supported by police chiefs in their Amicus brief.

Statue-of-Liberty-NewsThe state of Texas, however, asserted that it would be economically harmed by the guidance regarding DAPA because Texas’ costs in issuing drivers’ licenses would increase. Texas chose to subsidize the cost of drivers’ licenses by charging applicants less for licenses than the actual cost of processing and Texas does not allow “illegal” aliens to be granted drivers’ licenses. According to Texas, the federal designation of non-citizens as DAPA would harm the Texas economy because those individuals would thereby be “lawfully present” and as such eligible under Texas’ regulation to make applications for Texas’ drivers’ licenses, that would be then be processed at below administrative cost.  This assertion is the basis for the issues before the Supreme Court.

The first issue whether Texas has “standing,” i.e. the legal basis to even raise a complaint before a court. Under the constitution, courts must consider only cases or controversies. Courts do not address generalized political grievances about executive decisions. To have “standing” a party must have a harm that is concrete, particularized, imminent, traceable to the challenged action and redressable by a favorable ruling.

New York (and some other states), and the federal government asserted that any harm to Texas was self inflicted and not caused by the guidance. They also argued that the alleged harm was too speculative and indirect to support a finding of standing. The states’ brief noted that nothing in the guidance required Texas to subsidize the processing and issuance of drivers’ licenses, or directed states to do anything else. The brief detailed how various states have chosen a variety of different decisions with regard to the issuance of licenses to noncitizens.  The guidance from a federal secretary directs criteria to be used in exercising discretion by lower level federal officials. Removing that guidance would not redress anything about Texas drivers’ license processing. Additionally, the brief stated that Texas had not adequately demonstrated that there was even an adverse economic consequence to including those with DAPA as eligible for licenses. The Mayors’ brief also contended that the Texas did not have standing to seek a nationwide remedy since it only alleged a narrow harm to Texas.

If a majority of the Supreme Court decides that Texas does not have standing, then the case ends and the DAPA/ extended DACA guidance can go into effect. There then may be a concern about whether individual non-citizens will apply as the country confronts a presidential election in November, and therefore the possibility that a new administration could rescind or modify the guidance. However, states and localities like New York have plans in place to assist applicants if the federal government moves forward. They also have plans to prevent non- citizens falling prey to persons taking money based on false promises of obtaining an unavailable immigration status. If DAPA and expanded DACA are implemented, New York state and city and other similar states and localities have the capacity to reap the economic and public safety benefits of their residents coming out from the shadows and working with federal authorization.

If a majority of the Court decides that Texas has standing, then the additional issues raised in the case can be addressed by the Court. The Fifth Circuit upheld a preliminary injunction granted by a Texas based district court judge preventing the implementation of the guidance. One criterion for a preliminary injunction is whether the party requesting the injunction had a likelihood of success on the merits of the claims made. Texas argued it had likelihood of success on the merits of several legal claims.

Texas argued that through the guidance memo regarding DAPA the executive branch created a program that would deem four million unlawfully present aliens to be “lawfully present” and eligible for a host of benefits” in violation of immigration laws, and the “Take Care” clause of the Constitution, and without complying with the notice and comment requirement of the Administrative Procedure Act. The Supreme Court could decide that Texas has standing, but that it does not have likelihood of success on the merits of any of its claims and therefore the injunction could not stand. Alternatively, the court could decide that one or more claims have sufficient merit to support the injunction.

116px-LiberteExpositionUniverselleParis1878On the first issue, the federal government (supported by the briefs of New York State and City and other states and localities) argued that the executive authority to defer removal even for large groups of designated individuals was a lawful, long-standing, recognized component of prosecutorial discretion that had been exercised by numerous Republican and Democratic administrations in a variety of circumstances.  It further pointed out that individuals afforded deferred action were separately eligible to apply for employment authorization under an unchallenged long- standing federal regulation based on a federal statute that afforded the executive wide authority to designate which non citizens could obtain employment authorization.

Texas asserted that the executive unlawfully stepped on the authority of Congress by proposing to transform those designated DAPA into “lawfully present” non-citizens. The challenged guidance expressly stated that deferred action was an exercise of prosecutorial discretion that could be terminated in the agency’s discretion and that “deferred action does not confer any form of legal status in this country.” Texas pointed to a succeeding phrase that stated deferred action “simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.”   At oral argument the U.S. Solicitor General stated that the words “lawfully present” could be removed from the guidance and it would still have the same meaning and effect, i.e., that in the exercise of discretion the removal of certain low priority individuals would be deferred for a designated time period.

Texas also pointed to other government documents that stated that non-citizens with deferred action would be considered “lawfully present” for some federal benefits. Non-citizens with deferred action and in other categories are not eligible for most federal benefits, as they are not designated as “qualified aliens.” Further, those with current DACA are explicitly not considered as “lawfully present” to participate in the insurance exchanges established in the federal Affordable Care Act. Texas pointed to the ability of those designated DAPA to be “lawfully present” for social security eligibility. However, if DAPA is implemented, eligibility for participation in social security, now, would mean eligibility to pay FICA (social security) taxes, not to receive benefits.

FICA taxes are required to be deducted from each employee’s paycheck and attributed to the relevant social security number.    An employee pays about seven and a half percent of yearly income into the social security system. However, social security benefits are only paid to individuals who are at retirement age, or extensively disabled, and who in addition have paid FICA taxes for a significant time period, for most, the equivalent of approximately ten years of employment. FICA tax payment is required with each paycheck whether or not any individual is expected to be eventually eligible to receive social security benefits. At this point, those who may be eligible for DAPA are unlikely to be elderly or significantly disabled, and would not have the equivalent of tax payments to social security based in ten years of authorized employment.   They may never have to opportunity to lawfully work and pay FICA taxes for ten years as DAPA is designated for three years. Whether or not they will ever be able to receive social security benefits, those designated DAPA who obtain work authorization will have to pay a significant portion of their salaries into the social security system.  This is in addition to the state and local (and federal) income tax deductions that are required from each paycheck and form one of the bases of DAPA’s economic benefit to states and localities.

If a Supreme Court majority recognizes the guidance as a legitimate exercise of prosecutorial discretion, then Texas’ legal claims will likely fail. The federal government argued that review of the guidance was not allowable under the Administrative Procedure Act (APA) because it involved matters committed to agency discretion by law. It additionally argued that APA notice and comment requirements did not apply to statements of policy concerning how the agency will exercise its discretion. Further, it argued that the guidance was a lawful and responsible exercise of the Secretary of Homeland Security’s statutory authority to administer and enforce immigration laws supported by a long history of immigration law and enforcement policies. Additionally, the federal brief stated that Texas’ assertion that the guidance memo violated the Take Care Clause of the U.S. Constitution was based in a contention that it was incompatible with Congressional will and thereby was similar to the erroneous argument that the guidance exceeded the Secretary’s statutory authority. It further argued that the judicial branch of government did not have authority to examine whether the President has exercised power to see that laws are faithfully executed, as that is a political determination and not subject to judicial direction.

If the Supreme Court splits four to four on the standing issue or the additional issues discussed above, the Fifth Circuit’s decision stands and therefore the injunction precluding the implementation of the DAPA, expanded DACA, guidance memorandum continues.   New York State and City and other states and localities will thereby continue to suffer the harms imposed by the injunction and be deprived of the economic and public safety benefits of those with DAPA and expanded DACA coming out of the shadows and participating in the formal economy, and in the life of the city and state without fear.  (The briefs filed in the U.S. v. Texas case and the Fifth Circuit’s decision can be accessed here.)

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