at the end of the day it comes back to our desire to see the internet grow as the and obey the economic engine it has been. >> tomorrow on "washington journal," a look at the upcoming lame duck session of congress after thanksgiving breawithichael sheer of the "new york times." also, retired general wesley clark, former nato supreme allied commander in europe. he talks about president obama's trip to portugal.

after that, former house speaker newt gingrich on the incoming republican-led congress. that is live at 7:00 a.m. eastern here on c-span. >> like all men of great gifts, when they give up power, even though they may give it up for principled reasons, they are handcuffed the moment they give it up. >> in his final volume of the trilogy of theodore roosevelt, he talks about the final years of roosevelts life. >> now, a supreme court oral argument in the case of flezz versus the united states. this case focuses on whether mothers and fathers can be treated differently when passing on citizenship to children born abroad. currently a foreign-worn child of an unwe had american mother is a u.s. citizen if the mother

has lived in the u.s. for at least a year. but a father cannot do that unless he has lived in the u.s. for at least 10 years, five of those after the age of 14. this oral argument took place on november 10th. it's about an hour. >> in case 09581, flores v.r. versus the nins. >> mr. chief justice, when the court approved the requirement only pop fathers of non-marital children brorn abroad, that was base on biological differences between men and women. it provideded proof of parentage and opportunity to make a relationship with the filed that adhered in birth as to the mother. but here the residential requirements have no biological basis. they set up barriers to the transmission of citizenship by younger fathers, but not younger mothers and are based upon gender stereotypes that

women, not men would care for non-marital children. they have attempted to justify that scheme claiming the congress was concerned about statelessness, but nothing supports that claim -- >> what separates a stererotype from a reality? do you say it is not true, that if there is an illegitimate child, it is much more likely that the woman will end up caring for it than the father will? >> what i was -- >> that is not true? >> i think it is more likely. but i think that empirical evidence has not carried the day in gender discrimination cases. >> in all the cases, it is true in general. but there are people who don't fit the mold. so a stererotype is true for maybe the majority of cases. it just means that you say this

is the way women are. this is the way men are. >> absolutely. and this is beyond an empirical stererotype. at the congressional hearings it was said that the woman is the sole legal parent of this child. it dates back to when men were completely out of the the picture and women were the ones responsible. there is not just the empirical portion of it. there is always the notion that the legal parent was the woman. >> wasn't that said in relation to the principle that where paternity was not established, the child would be regarded as having the citizenship of the mother under the law of virtually every country at that time? >> and the law of many countries that citizenship did go through the mother. but with respect to legitime makes, and this statute -- and

congress talked about all fathers of non-marital children. this statute applies only to those who legitimate. it says that in the that case, the citizen xi goes through the father. the bottom line is that the very article they relied upon says in one instance it goes through the mother, but in the instance of the people affected by the statute, it goes through the father. there are also a number of situations under which -- >> but until there is legitimation, it goes through the mother. correct? >> i respectfully disagree. at the time in 1940 when this was pass, there were a number of situations where it wouldn't go through the mother. in china and japan, if the father is merely known, it would not go through the mother. there were countries at the time including english

countries, if a female citizen gave birth to a child somewhere other than in their country, citizenship would not travel through that mother because of the laws of those particular countries. there are also stateless women. in all those situations, the citizenship would not go through the mother, and this statutory scheme does not provide for that. it provides risks for married fathers. a march who is married to an ayen -- alien, in those situations it would not allow the woman to transmit citizenship. so if the father was precluded as in the united states, they would preclude the child from doing that as well. there are numerous countries who have basically reinstituteded theule that if the father is known, citizenship would not transmit through the mother. those are in the middle east and africa.

those are also detailed in the scholar's brief. >> how do you deal with the argument that really this is a classification where the unmarried woman is being favored? because the unmarried father is being bracketted with the married couples? it is kind of like matthew c., that the woman is getting a special favor and the unwe had father is treated -- unwed father is treated like most married couples who have children. >> this was not a case where congress was seeking to remedy any past discrimination against women. there was no discrimination against women. up until very shortly before this statute was passed, it was clear under the state department practices that the children -- non-marital children did get women's

citizenship. it was always true of men. there was not a situation being recommend deed in that situation. >> but i don't think that answers the justice's question. this appears to be an exception to a generalized, non-gender based requirement. couples, male and female and unmarried fathers are subjected to five years. only unmarried mothers get the largess of one year. why shouldn't everybody just be put into the broader category rather than extending the largess to a greater number of people? >> the reason, just smare is we are not talking about an exception. that was the standard prior to the 1940 resolution. congress imposed new residence

requirements because it was concerned about the foreign influence in mixed marriages, meaning someone married to an alien. in those cases, congress said in the record that they were concerned when those children were born abroad, that they would be more foreign than american. >> doesn't the five-year residency requirement address that? if we apply it generally, wouldn't it hong kong's concern about there being a substantial tie to the states? >> it absolutely would. but that concern is not applicable when you are talking about two u.s. citizen parents to whom the extended residence requirement didn't apply, not marital mothers who are assumed to be the ones raising the children without the influence of an alien father. non-marital fathers are in the same category who raise the children on their own. they are not subject to that type of foreign influence, so

they should be grouped together with the women and with the two-citizen families because they have the lack of foreign influence. it is only as to the mixed marriage couples who are married where there is a foreign influence problem, and they are the ones to whom the expanded residence requirement was applied. now with respect to the -- the slrtor general has raised -- the solicitor general has raised concerns about the doctrine. first, we are not talking about citizenship of aliens. when exercising that power -- excuse me. congress' power is limited. with respect to aliens, congress made it clear in passing this statute that they considered those people who gained citizenship after birth

to be dirt than aliens. in 1790 congress passed a statute saying children born abroad to citizens -- >> are you taking this in the direction of an argument that congress gives less deference in determining nash a lot than amission to aliens? >> we are talking about ability of a united states citizen to transmit citizenship. citizenship is extremely important, and it is a tradition that citizens have been able to do so for years. so yes, constitutional limitations should apply when congress is drawing distinctions between -- >> so you want us to write an opinion that says congress has less deference when it determines who should be a national of this country than when it determines who should be admitted as an alien? >> there is no tradition dating back to 1850 for the admission

of aliens -- >> are you asking us to write that formulation in an opinion? >> your honor, what i am saying is the due process guarantee of protection is applicable in this context because the -- >> if i take that as a yes answer, what is your authority for that answer? it seems to me that it ought to be just the other way around? >> well, your honor, my authority for that answer is the traditions i have been discussing. congress itself in 1940 considered people who gained citizenship by birth abroad as being differently situated than aliens. >> of course it was congress who made the distinction. but you are asking us to say that congress has less authority over this essential issue as to who should be nationals of the united states. maybe there is some authority for that. do you have any authority? is there something i can read that tells me that? >> there is a principle that

says when congress exercises that power, it has to with limitations -- >> but that was an alien admissions case. you are talking about nationality. >> i'm talking about citizenship transmitted by a united states citizen. we are saying the father as a citizen has protection against the discrimination here because a similarly situated woman would be able to transmit citizenship -- >> sorry, are you finished? >> yes, your honor. >> i didn't quite follow this. as i understand it -- what remedy will there be if you're right? this is what i don't understand. a child is born abroad. one parent is american. the other is foreign. if the two are married, that child is american only if the father or the mother, one or

the other, has lived in the united states for now at least two years. it used to be more. ok? it was five years, after the age of 16. now suppose they are not married, and suppose the american is the father. same rules now suppose they are not married, and the american is the mother. now it is not five years or two years. you only have to have lived here for one year. suppose i agree with you. i don't see the sense,ic figure it out. suppose i agree with you. why doesn't the remedy say ok, whether it is the father or the mother, the general rule aplays that have to have lived in the -- applies they have to have lived in the united states for two years. >> there are a couple of reasons for that. first, there a structural limitation to imposing a

leveling down type remedy. citizenship cannot be taken away once granted. the court cannot -- >> some people were lucky, and they are already citizens under this, and there we are, because their mother lived in the united states for one year. those already are citizens. nobody is going to take that away. we are just looking at a statute. and in the first part of the statute, they have in section g of 1401 the first rule i told you about. in 1408-a, the second rule, in 1409-c the third rule. if you are right about this, and it is unfair and there is no good reason whatsoever for distinguishing on the basis of gender, we strike g. now that would seem to be normal, but that isn't going to help your client. so how do you get to some other thing that instead of striking g, what we do is strike all of a and then strike the whole thing before and shove them all

into g, which isn't so easy to do in this language. how do you get there? >> this statute has a receiverability clause. >> >> the. we strike c. you want me to strike 1409-5, and 1401-g and shove the people there into g, which is tough to do in the english language. i want to know how you get there? >> by extension, your honor. >> to be clear about what you are saying, i thought your argument was you are not touching the married couples. >> that is correct. >> so you are talking about equating the unmarried father to the unmarried mother. is there any notion of how many people we are talking about? in the extension versus invalidation, the court generally extends if there is a

small class to be covered. in a large class that is already covered. the reasoning has been my goodness, it would be most destructive of the legislative will if you can't cover that larger class. as to the group of unmarried mothers as against unmarried fathers, do you have any notion of what the numbers would be? >> justice, i don't have any statistics to provide the court. >> maybe you would like to answer justice breyer's question? >> yes. the remedy we are requesting is extension. in wescott and in heckler, the court looked at language in the receiverable close similar to this -- in the severability clause and said that kind of languages gives the courts

power to grant an extension remedy. that is what we are requesting. >> there is another slight problem with that, i think. in reading this carefully, which i hope i've done, it seems to me it may also discriminate against fathers. that is because t says that the woman has to have been physically present for a continuous period of one year. i have read at least one article that says that word continuous doesn't appear with fathers. and they really mean it. if they go down and visit on christmas, and they visit with their father or whoever for five minutes, that they cannot take advantage of clause c. is that true? >> i don't know. >> if it is true, then i would think that the fathers are really worse off. i don't know if that helps you. maybe it could turn out that that is really a problem.

if it is really a problem, then the fathers are worse off. does that help you with the remedy? >> traditionally in immigration law when you have continuous requirements, if it is a short casual trip, then that requirement is not considered to have been violated. i have to admit i am having a hard time following the question. >> i am looking for a way. i am trying to be helpful in my question. i'm looking for a way to get to your result. i'm not saying i would do it. but i just want to know what the best way is of getting to that result where you shove everyone into c instead of just cutting c? >> el about, the best way is to follow the course tradition in the benefits cases such as wangler and others where the court granted an extension remedy. >> that would help you. is there a reason for do that? >> the reason to doing that is the language that is contained

in the severability clause is similar to what the court has already said allows an extension remedy. the other problem is that if the court doesn't grant an extension remedy, it leaves petitioner basically without a remedy. there will be individuals -- >> no. he would have a remedy. the remedy for an equal protection violation is to treat everybody the same. you can do that by lowering the people given the remedy or increasing the people that aren't. here is something. my father and mother are not being treated the same. that is all the relief he is entitled it. >> you are right that that is the state of the law. you can't take away the citizenship from the people who have already gotten it. the notion that you can grant prospective relief doesn't make any sense either. number one, the statute we are talking about today doesn't apply past people who were worn before 1986. the thing is if somebody were

to come into court after an opinion that says just that were issued and say i want to claim citizenship through my mother, that person would still be entitled to citizenship because it is as of the date of birth. this is a retroactive provision. so the federal relief notion doesn't make any sense in this context because the equal protection violations basically all have occurred at the time a person who would make a citizenship claim was born. the petitioner area father would say i was unable to transmit citizenship to my son, and a woman who was similarly situated was able to. that type of remedy isn't available. in the court's decision in iowa versus bennett, they actually ordered a refund of the taxes that were collected in a scrim torii manner date back in time. if you could make a relief that

could take away the benefits others have received, that would be all right. that is not possible. >> if it is an equal protection violation, it vie late equal protection. but whether it goes up or down, the court has to give a temporary solution because the legislation can't be convened on the spot. the court did go through that situation in the wescott case. it said yes, that is what we have been doing in all these cases. in the sarah case, we said we didn't discriminate. you get the quarters allowance that up until now has only been available to male officers. in another case, it recognized it had to do that. >> absolutely.

in many of the benefits cases, the same analysis was available. and that is the analysis that we are asking that the court apply here. >> you are asking, i think, that the court pronounce your client to be a united states citizen. isn't that the only pronouncement from a court that is going to do your client any good? >> well, justice -- >> a united states citizen. >> this is a criminal case, so technically what we are asking is for a reversal of the judgment -- >> reversal of the judgment on the grounds that your client is a united states citizen, right? >> that it would be possible for him on these facts to become a united states citizen, yes. >> that he is a united states citizen. >> that he is. do you have any other case where a court has confered citizenship on someone who, under the statutes as written,

does not have it? >> that was one of the issues debated in the wynne and miller cases, and the court has not said that yet. >> you haven't done it. >> that is correct. but it can in this case for a number of reasons. number one is the fact that the severability clause is applicable to this claim. they applied it to the same statutory scream. you cannot get naturalization under those circumstances other than that what is set out in this statute. so there is a negative implication that they were not precluding this type of remedy as to a citizenship claim where they were claiming an equal protection violation. the second point is that if the court is unable to grant that remedy, that would leave an equal protection violation in place. as the justice made clear in welch --

>> united states we -- unless we solve the violation the other way by saying that the father gets the shorter period that the mother has. i'm sorry, that the mother gets the longer period that the father has. >> right and -- >> of course we can't apply that retroactively. fine. we don't do that. the people who have citizenship cannot constitutionally be zprifed of it. >> this statute says you have citizenship as of birth. even if the court were to render that decision and someone were to make a claim, they could claim i had citizenship at birth which was before the court's decision. that would be no remedy at all. >> any of the remedies you are discussing with justice scalia involves this court in a highly intrusive exercise of the

court's power, let's talk about priorities. we usually talk about substance first and remedies second. is it logical for us to say that because the remedies are so intrusive that we use rational basis scrutiny, and because the remedies are so difficult, we are going to use rational basis scrutiny. is that a rational way to proceed? >> i don't think so. the court has traditionally said the question of a right and whether or not there exists an opportunity to make a claim and the remedy for it are and litically distinct -- >> it says the remedy can complicate it. the court is not set up to do that. wescott said the court can go one way or the other way. it is there as a temporary legislation.

it goes back to congress to do would it will, but in the interim we need a solution. >> that is correct, and certainly congress can do that. the solicitor general brief makes it clear that what was being balanced here are concerns about statelessness on the one hand and connection to the united states on the other. if congress hadn't attuned based on gender stereotypes that men weren't caring for children, then it would have been able to put them in the same category as women because they would understand that both were caring for children. as time has gone on in the national women's center brief, it pointsed out that the number of men who are raising children in single parent families has been increasing other time. so the problem, if anything, is getting worse. >> but congress did make at least some change, right? it is no longer five years. it is only two years, correct? >> the current system is five years, two years after the age

of 14. of course that age requirement here completely precluded his father from being able to transmit citizenship because of his age. that kind of complete precollusion would never apply to a woman who is similarly situated. >> thank you, counsel. >> mr. chief justice, and may it please the court. congress in deciding who among the various people born abroad should be made citizens of the united states has to take into account myriad factors that mayberry on that question and its judgment. they include congress' prediction in the case of confering citizenship at birth, what would be that person's likely connection to the united states. congress also has to consider interaction with the laws of other countries where these people may be born. it may take into account

equities, potential statelessness and dual nationality. these are complicated questions to which the court should defer -- >> well, intermediate scrutiny is not without some deference. >> excuse me -- >> unless we apply strict scrutiny, which no one is arguing for, the question is is it rational basis deference, or is it some intermediate scrutiny, correct? >> yes. and we believe that under this court's decisions, and particularly the bell case, that it should be rational basis scrutiny. >> you can't really mean that because we can put up a hypothetical that is very simple, and you will explain to me why a u.s. citizen should be burdened in this way. the hypothetical is let's assume congress determines

there are too many foreign-born children of u.s. citizens coming into the united states, and that those foreign-born children, those born of women, are placing a greater burden on our economic system. they need more case for reasons that congress determines and litically or statistically. they are spending more government money. and congress passes a rule that says only the foreign-born children of men can come into the country, not of women. wouldn't that be a rational basis? >> i think the answer to that question lies in the court's formulation of the test that is applied in this particular context. and that is the formulation drawn in an earlier case. there has to be a facially legitimate and bona fide reason.

>> there is one. >> i think the court could have no trouble concluding that an arbitrary choice between men and women, having no bearing -- >> at what other -- what is arbitrary about government saying i want to spend less money on a new citizen? >> the ultimate reason may be legitimate, but i think the facial legitimate test encompasses means, not just the end. if congress is arbitrarily choosing between men and women or people of a different race, i think given this court's tradition, it could conclude that those would be impermissible bases under the well-established test. >> what is the well-established test? >> theolla versus bell and the cases underlying it. >> is that the rational basis plus test you are talking about? >> you could call it that or

facially legitimate. >> now we are just going to continue sort of tweaking the definitions and creating more variations on our review standards? >> no. i think it is a test that this court has articulated in prior cases to address this very situation, include situations where constitutional rights of u.s. citizens are being claimed. we agree with justice kennedy that the standard should not be more demanding, but should be less demanding. >> it is hard here because both the father -- this father, but many fathers and mothers are actually u.s. citizens who want to bring their children over as u.s. citizens. so if the father was making the claim here, you would still argue it was a rational basis test even though he is a u.s.

citizen entitled to all the protections of the constitution? >> well argue for the -- >> that was the case in theollo in which the playoff included u.s. citizens, mothers and fathers, in a very parallel situation, claiming that special privileges for illegitimate children to reunite with the mother worked an unconstitutional discrimination against the fathers of such children, and it was u.s. citizen fathers and children who were among the playoffs. the court nonetheless said there is no constitutional right to pass citizenship. this is a question of congress' judgment about who it believes should be made citizens. and one of the important pa factors congress looked at is connection to a u.s. citizen that is in tournament a proxy for what the likely connection to the united states will be. >> i understand that. but what you are doing is applying a lesser standard to gender discrimination than is

ordinarily applied to gender discrimination. now is there any reason for that? that was the thrust of the question. >> that was the issue in that case. >> all right. if it is the government's position you do, does the same thing apply to racial discrimination? do you also apply a lesser standard to racial discrimination? >> i think the standard in that case would render a reliance on -- >> it is cutting a big hole in the 14th amendment. >> i don't think so because i think that same principle would be given a fact -- >> in that case we were dealing not with citizens. this was someone who could be a resident alien wanting to bring in a parent or a child. that case wasn't about who was the citizen at birth. >> it wasn't. but in the eyes of the constitution, anyone born abroad is an alien unless and

until congress has passed a statute making them a citizen. so and litically and doctrinally it is the same question. >> and congress has passed a statute making certain people citizens, and the question is has it done so in a way that is compatible with equal protection? remind me -- i thought the classification that was dealt with in that case, wasn't it unwe had parentage rather than gender? >> there were claims based on both illegitimate's -- illegitimacy and gender. if i could move on to the way the statute operates because we think it satisfies either standard of review in this case. and if i could step back for a moment, as i mentioned, there are a number of factors that

congress takes into account in crafting a statute like that. 1401 deals with married couples, and where both parents are citizens, all that is required is that one of the parents have resided in the united states prior to the birth. where you have mixed parentage, the background of the enactment of this in 1940 and the reenactment in 1952 and continued to this present day is congress was concerned that such a child may not have the requisite connection to the united states. they may have a connection to the parent, but may not have a connection to the united states, and thus they wanted to grant citizenship. then it was to requirme residency of the parent as a -- to require residency of the parent as a tails man -- tailsman. where you have unwe had

parents, in 1409-5, what congress did was to follow general principles of the law of illegitimacy. if a father ledge mates a child, it is as if a child was born in a marriage, and the rule of 1401 with respect to marriage applies. that is true whether both parents are citizens or in a mixed marriage situation. if a father legitimates a child , then the child benefits from the rule that if either parent was present in the united states before birth, they are a citizen. they don't have to satisfy the one-year unbroken residency requirement under 1409-c. if it is mixed parentage and the father legitimates, then the rule of mixed parentage

applies as if they will be married at the outset. it is a perfectly sensible provision or approach and consistent with the way this has been done. what congress did with respect to the mother of the child born out of wedlock where there may not have been legitimation is to confer citizenship on the basis of a one-year residency. a mother in that situation who at the moment of birth, as this court understood in a prior case, that mother may be the only parent at birth with the requisite connection for the birth. it is very much like the two-citizen family. the only parents are parents with a connection to the united states. >> if he classification then were that -- if the

classification then were that we want to encourage because it is good for society, father-child relationships, and so we are going to give that advantage that is one year for fathers, and we are going to put the mothers together with the married couples would that be compatible with equal protection? >> well, i think that would depend upon a different rationale. >> i told you what the rationale was. we have lots of statutes nowadays like the family medical and leave act that attempt to encourage fathers to have a relationship with their children, to be an equal parent. that is the rationale of this classification. they want to encourage the father-child relationship. therefore, they give this one-year amount for the father.

everything else is the same except it is the father who gets the one year and the mother who gets the other. >> i think that would be a more difficult question because congress would be responding based on the expected behaviors and talents maybe of men and women. what is different here is that is not the basis for this classification. >> well, it would be in fact acting on the basis of what hasn't been the general pattern, but what is becoming a new pattern. >> right. in that situation congress could be expected and required to do that on a gender-neutral basis because it is preparesing on the behavior. >> so even though we are still dealing with citizenship, you recognize that there are cat gorizations that would run afoul of equal protection.

>> the question would be whether that is a facially legitimate rationale. i think i would want to know more about what the record for such a justification would be, et cetera. but i would like -- >> the family medical and leave act making it a parental leave as it had been historically a maternity leave. >> that is expanding on a gender-neutral basis rather than singling out one parent or the other. i would like to finish the description that i have because it is incomplete, and there is a critical piece left out. that is that counsel for petitioner says that if a father legitimates an out-of-wedlock child, that child is in the same position as the child of an out-of-wedlock mother. that is not likely to be so, and it is not likely to be so

at birth, and this is the reason why. when the child is legitimated, there were two parents. there is the father, but also the alien mother in the other country. you have two parents whose interests have to be taken into count. the situation congress was addressing in 1409-c, the child born out of wedlock with no recognizeded father, and you only have the mother. if we think of this in parallel to the cases the court has had in the domestic context, that is structurive. in the case of laird, whether the child born out of wedlock, whether the father should have received notice of a prospect tiff adoption. the father had not taken the

steps to form a relationship with the child and be a father in the eyes of the law, then the mother alone -- >> we have the briefs that are filled with pros and cons about the business and whether it was real. i want to comment on what may be a very minor thing, but i did notice -- prodded by an article i have to say -- that for the women, there is a sense that it is tougher, and that is because of the continuous period. i guess it depends on how that is enforced. there could be a class of people living near the border near canada or mexico where they step across the border to say hello to their cousins. does that stop them from being enforceded? >> it does have to be continue was residence. >> that means you can't go across the border? >> there may be minor

exceptions. >> well, is there or isn't there? to your knowledge, is this enforceded with total rigidity, or could you go maybe once a month or your birthday? >> i think in that situation, no -- >> in that situation, you cannot go across the border. >> the example i was given when asked this question was if you have somebody who lives in mexico and commutes to the united states five days a week, under 1401 you can add up each day and get to a total of five or 10 years of actual physical presence. that would not satisfy the continuous -- >> all right. if it is tough then, and really is meant to be tough, then what is the rationale for treating women in this respect worse than treating men? >> congress -- the one-year provision -- >> i grant you the time, one

year, is treated them better than the time five years. but the word continuous, if it is tough, which your answer leads me to believe, and that they really mean it, then that is treating them worse than treating the men, and i would like to know what is the rationale for treating them worse? >> congress selected -- while i said the mothers are like the two-zirin parents where you have some connection, congress was balancing the duration of that connection or taking into account the duration of that connection and chose to make it a little bit tougher. i think that is perfectly legitimate, because you only have one parent, and congress was deciding well, if somebody has been here for a continuous period of one year, then there is probably a greater likelihood that that person will have roots here than for example the other situation where you had a child born

abroad and came home in the summers. that child may not think of himself or may not be regarded as an american in the same way. what congress was doing was focused on a period of longer duration which in its judgment could give rise to, congress believed, a greater connection to the united states. >> counsel, if the court were to determine that this does violate the equal protection clause, and the court were also to determine that this is not a case that would be the first one in history in which it grants naturalization, what do you think the court ought to do? are your -- i think the court ought to strike the eligibility of anyone to get citizenship on the basis of one year. i think it should con strict the class to those specifically governed by 1401 -- >> on the ground that it violates equal protection. >> and the solution -- >> what about your friend's

point that that retroactively deprives people of citizenship that we are saying they should have gotten if the clause was enforced? >> i tink this court could legitimately take into account the con federal of citizenship. it is similar to matthews in which congress took account of reliance interest -- >> here of course under my scenario, we don't have a situation where congress has addressed the problem. so what do we do? under the theory we say this person should not have been denied citizenship because of the unequal protection in the law. he comes in with the same situation, he get to go deported for not being an american citizen. does he get the benefit of that or not? >> no, he does no not. i think part of the reason is

we do not think a court can properly grant u.s. citizenship. but for the people who have been granted citizenship, the solution would be to invalidate the one-year residency requirement -- >> when would we grabts remedy when it wouldn't do this petitioner any good whatsoever? it's a remedy that doesn't remedy. we are not in the habit of granting relief that doesn't provide relief. >> i suppose the court could decide that at the outset, that it would not be appropriate to grant that relief and not go any further. >> but the reason it doesn't grant that relief is unusual in this case. it not only doesn't grant him relief because of the third party standing. he doesn't care whether they are treated equally or not. he just wants to claim the benefit of citizen. the person that would get relief would be the father.

the relief this person is asking for is not to be deported. and so the problem of the relief being granted is really complicated by the fact that it is the case of third party standing. >> i agree with that as well, which i think the court needs to be all the more cautious about entering into this. >> in answering the question that way, i know you are familiar with this case. this was a father who was denied ben you fits to take care of a child whose mother died during childbirth. the court was commit three ways on why. one of the members of the court says this is discrimination against the child. even though the class if i case -- classification was called a

mother's benefit, it is discrimination against the child because it should make no difference at all whether the missing parent is female or male, that that was utterly irrational. that was the justice's concurring opinion. he seemed to think that the discrimination was against the child and that that counted for equal protection purposes. >> here the only claim that has been raised is an equal protection violation of the parents. >> well, in that case the father was the playoff, but at least one justice's rationale was that the discrimination was really against the child, but the father could raise it. >> insofar as any claim of discrimination by the child, since it is not based on the child's gender, i think that would clearly be a rational basis or a legitimate standard.

in justice oh, connor's opinion in miller, it addressed that there. this is not just based on the parent. it is based on the complexities of legal history and how children born out of wedlock are dealt with. it turns not on stereotypes or talents, but on long-standing legal regimes not just in this country, but in other countries. unless the father does something to have a meaningful relationship, the mother is the parent who is likely to have the meaningful relationship. once the father comes forward, the result is not the father gets a veto power or only the father's interests are taken into account. the answer is you have two parents -- >> that was a case where the mother was versus father. here it is a single parent. this is not a case where the

father is doing something that the mother regards as disadvantageous. that was the layer case -- lair case. you said something about stereotypes and this is the way the law was. but wasn't the law shaped because of the vision of the world as being divided two married couples where the father is what counted, and unwe had mothers where she was both father and mother because the law didn't regard him as having any kind of obligation? >> well, again, i think this is the issue the court addressed in nuen where the court said there is a difference in the moment of birth that there is the potential and therefore the likelihood of a child to parents at the beaumont of birth that justified the requirement that the father took a step to legitimate the child to be on equal fighting

with the mother with respect to the rights. here the residential requirement is what measures the connection of the parent to the united states, not the child to the parent. but we think the same point attains. that at the moment of birth in another country for example, another country may take the same view that this court took in some cases, that the father doesn't have a meaningful connection to a child in the one that one would give citizenship on the basis of until there were formal steps taken after birth to establish relationship of the child. if it were constitutional to congress to do that in nuen, tnt constitutional to take aaccount that other countries might do the same thing. >> i thought the court relied on the biological factor here. there is no question that this is a natural parent of the child. >> yes, but in nuen the court did not look at the

circumstances of the particular case. it looked generally to what would have justified congress acting categorically, as we think congress has to have the flexibility to do. these statutes show there are numerous considerations that have to be taken into account, and that is what congress did here with respect to establishing the -- requiring a close nexus to the united states. if in another country a father has legitimated or done those steps, then you have a u.s. citizen mother and a father in another country that is directly paralleled to the married mixed parentage, and congress was concerned whether that child was going to be sufficiently affiliated with the united states to justify a querl -- conferral of

citizenship. >> if we add to the burden, do you have the authority that we can address that hypothetically? in other words, without making a decision on the equal protection question on the merits? look ahead. if you say look, the only remedy we are going to give this person is a remedy that isn't going to benefit him regardless of how the merits are decided, therefore we don't reach the merits. >> i don't have authority from a decision of this court. i may not be recalling something. i do believe in the special context of citizenship, there may be a justification for the court's doing that. >> would be in effect saying we have no jurisdiction because we have no standing. there would be no remediation the court could make.

>> the court has looked at questions of severability at outset. this is a peculiar situation -- >> in answer to the chief's question, whether have been a number of cases raising this question of extension versus nullification, and in every one the court did make a choice. it didn't say we can't make any choice. in the one, matthews v. heckler, it was a race case where the court equalized doubt. but i don't know any one of them -- >> i think that is ordinarily the case. this is a difficult context, and just to go back with the complication from the remedial approach that the chief justice put forward, the expansion of

zipship, and if that was applied to everybody similarly situated, it would raise questions whether congress would have the freedom, perhaps after an expansion of citizenship, for people, following this court's decision, that they were citizens, too. >> does inning ring a bell -- something that goes the other way, the right of an american citizen to pass his american citizenship on to his children? when we talk about congress' power over naturalization, is there anything that is drawing a distinction with a general people of people who are not citizens to become citizens, but what seems to me a different situation, the right to pass your citizenship on? >> there is no such right -- >> i am not saying there is such a right.

i am wondering if it rings any bell at all that this has ever been discussed in anything you have read? >> well, the court's decision in the dissenters in lenton discussed this. but we think it is clear in our cases that that is congress' equalization power. >> just looking and trying your memory, does something come to mind the opposite way where the court did go into a long exige sus into the law and saying you are not entitled to a remedy? >> if this is is going back to remedy, i don't. >> thank you. you have four minutes remaining. >> thank you chief justice. the rationale that the

solicitor general's office offers is further assumptions can be made that even after men do the things that courts said were required of them, that they leath and have an opportunity to form a relationship with their child, that further gender-based assumptions should be put into place and say you are not going to be the real parent, whereas in the case of women, we are going to assume that when they have the non-marital child, they are going to be in charge. and when a father legitimates and does whatever is required, we are going to assume the mother is involved still. the very facts of this case demonstrates that is not the case. in this case, petitioner's father raised him, and petitioner's mother was not involved in his growing up, and he brought him to the united states -- sorry, i thought i was getting a question. so it is basically piling further gender-related infernoses on top of the ones in place in order to justify in place in order to justify this