430 U.S. 787 (1977)

The Supreme Court held that it was constitutional for Congress to grant special preference immigration status to legitimate children and their parents, or illegitimate children and their mothers, while excluding illegitimate children and their fathers. (Read the opinion here.)

Justice Powell delivered the opinion for the majority, holding that Congress could prefer unwed mothers over unwed fathers, and that such a distinction was a political question that should be left in the hands of Congress, not the judiciary. The decision was in response to a claim brought by three sets of illegitimate children and their fathers (the appellants) challenging section 101(b)(1)(D) and 101(b)(2) of the Immigration and Nationality Act of 1952. The section granted special preference immigration status to aliens who qualify as the “parent” or “child” of a United States citizen or lawful permanent resident. Under the statute, “parent” is defined as the legitimate mother or father, or illegitimate mother of a U.S. citizen child, and child is defined as the offspring of a U.S. citizen legitimate or illegitimate mother, or legitimate father. The special preference immigration status would make an alien parent or child of a U.S. citizen eligible for entry without regard to any numerical quota or labor certification, and would make the parent or child of a lawful permanent resident eligible for entry subject to a numerical quota but without the need for any labor certification. The appellants argued that the Act violated their First, Fifth, and Ninth Amendment Rights by denying them the right to mutual association, equal protection before the law, and due process of the law.

The Court stressed that Congress, not the courts, has the sole power to decide who to admit and exclude for immigration purposes, noting, “[t]his Court has repeatedly emphasized that ‘over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.” While finding it unnecessary for Congress to meet any constitutional standard of review, Justice Powell still determined that Congress’ preclusion of illegitimate children and their father’s could meet rational basis review because the Government had a legitimate interest in protecting against immigration fraud, while observing that in the context of immigration, “‘Congress regularly makes rules that would be unacceptable if applied to citizens.’”

Justice Marshall dissented, holding that this case “directly involves the rights of citizens, not aliens,” and that Congress cannot enact discriminatory laws against U.S. citizens. Justice Marshall determined that Congress’ intent behind special preference immigration status was to keep families together so that U.S. citizens would not suffer the hardship of separation. By extending preferential treatment to certain citizens while excluding others, Justice Marshall held that Congress violated the appellants’ Fifth Amendment right to equal protection and due process. Justice Marshall would have held the Act to some form of heightened scrutiny because it discriminates on the basis of gender, by preferring mothers over fathers, and legitimacy, by preferring legitimate children (including step-children and adopted children) over illegitimate children. Justice Marshall determined that the only rational basis Congress claimed for the discrimination was administrative convenience.

Justice White also dissented for mainly the same reasons as Justice Marshall, but wrote no separate opinion.

Authored by: Amanda Marissa Reynoso-Palley, Cornell Law School