Volume 74, Number 5

November 1999

Can Courts Confer Citizenship? Plenary Power and Equal Protection

Derek Ludwin

In this Note, Derek Ludwin applies principles of equity to the jurisprudence of nationalization law. In a recent case, Miller v. Albright, the Supreme Court failed to provide a remedy for the victim of an unconstitutional naturalization statute that favors foreign-born illegitimate children of citizen mothers over those born to citizen fathers. Ludwin highlights the Court’s unnecessary impotence due to its strict adherence to the plenary power doctrine and unquestioning deference to Congress. He traces the history of the application of the plenary power doctrine in naturalization law, noting that the Court has never overturned a naturalization statute on equal protection grounds. Ludwin finds, however, that Miller, in which a majority of the justices deemed a naturalization statute to be unconstitutional, marks an important jurisprudential shift toward applying the plenary power doctrine in conjunction with other interests, such as equal protection. Ludwin further argues that the Miller Court’s unwillingness to address the tension between plenary power and equal protection has left the lower courts without guidance in this area and that without an effective remedy-the power to grant citizenship directly-the Court’s finding of unconstitutionality is too weak to afford any real protection. The answer, he states, lies in principles of modem equity. Ludwin concludes that direct conferral of citizenship is in accordance with the Court’s generous post-Brown exercise of equity power in equal protection cases.