Courtney Magnus

Document Type

Supreme Court Commentaries

Publication Date



Fifth Amendment, Due Process Clause, Intermediate Scrutiny

Subject Category

Constitutional Law | Supreme Court of the United States


In Lynch v. Morales-Santana, the Supreme Court will consider whether the Immigration and Nationality Act’s physical presence requirement scheme violates the Fifth Amendment’s equal protection guarantee. Under 8 U.S.C. §§ 1401(a)(7) and 1409(c) (1952), an unwed U.S. citizen father wishing to convey citizenship at-birth to his child born abroad cannot do so unless he has been physically present in the United States for ten years prior to the child’s birth. In contrast, an unwed citizen mother only needs to be physically present for one continuous year. This commentary argues that because §§ 1401 and 1409 facially discriminate against unwed citizen fathers the Supreme Court should hold that the different physical presence requirements violate the Fifth Amendment’s equal protection guarantee. The Court should remedy this violation by applying the shorter one-year continuous presence requirement to both unwed citizen mothers and fathers.