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In 1996, just a few months after the United States successfully urged the Supreme Court in United States v. Virginia to invalidate as sex-discriminatory the male-only admissions policy at the Virginia Military Institute, the District of Columbia Circuit in Miller v. Albright upheld a federal law that used an express, sex-based distinction. Section 309(a) of the Immigration and Nationality Act (INA) makes it harder for male U.S. citizens than for female citizens to convey their citizenship to their children if those children were born abroad out of wedlock and the other parent was not a U.S. citizen. Notwithstanding the United States' position in Virginia that sex-based classifications are virtually always unconstitutional, the government defended Section 309(a) in the Supreme Court. As the government saw it, Miller involved a claim by an alien abroad, so the Constitution did not apply or, at most, the Court should review the claim with extraordinary deference to the political branches. If deferential review applied, rather than Virginia's "skeptical scrutiny," the government believed that the Court should uphold the statute.

When review was granted, the case seemed to present an opportunity for the Court to revisit the larger issue it had addressed two decades earlier in Fiallo v Bell: how to reconcile heightened, “skeptical” scrutiny of sex-based classifications with diminished scrutiny of immigration and naturalization measures in a case that seemed to call for both. The Court in Fiallo had sustained a sex-based classification in an INA provision closely analogous to Section 309(a), but dealing with eligibility for permanent resident status rather than citizenship. Fiallo treated Congress's plenary power over immigration as categorically trumping the otherwise heightened level of scrutiny applicable to sex-based classifications. But virtually the entire body of modern constitutional law on sex discrimination developed after Fiallo. The Court decided Fiallo in 1977, close on the heels of its 1976 decision in Craig v Boren, the first case in which it applied intermediate constitutional scrutiny to a sex-based classification. The two ensuing decades of sex discrimination decisions strengthened and clarified the equal protection standard. The court of appeals in Miller had upheld the statute under Fiallo over a dissent arguing that the Supreme Court should reconsider Fiallo in light of the intervening sex discrimination jurisprudence. The government's brief in opposition to certiorari characterized Miller as squarely governed by Fiallo, so the Supreme Court's decision to grant review so soon after Virginia suggested that Fiallo might be headed for the dustbin.

Instead, the Court issued a decision on nonjusticiability grounds that was so fractured and narrow as to seem almost meaningless. But there is, on closer examination, much that is surprising and significant about Miller. The case provides an opportunity for re-examining the nature and justifications for the plenary power doctrine.

The authors begin by analyzing Section 309(a) and explaining why they believe those Justices who concluded that the statute unconstitutionally discriminates based on sex are clearly right. They argue that judicial deference under the plenary power doctrine is an institutionally rather than substantively based doctrine. The authors then look at Miller's implications for the future of the plenary power doctrine. Finally, they discuss the implications for government lawyers of our sex discrimination and plenary power analyses. That discussion has two parts: First, the authors argue that the underenforced-norms reading of the plenary power cases suggests that the political branches should not use deferential, rational-basis review in conducting their own constitutional review of immigration, nationality, or citizenship measures, but should apply full-fledged constitutional norms. Second, they argue that, after Miller, the courts lack adequate justifications for the plenary power doctrine—at least in the absence of a new, substantive rationale for diminished protection of individual rights—in jus sanguinis citizenship cases like Miller, and, indeed, lack grounds for relying on it in immigration and nationality cases generally.

Publication Citation

1 Sup. Ct. Rev. 1-70 (1998)