Thursday, July 18, 2013
Former White House counsel, Alberto Gonzalez, who is now a law professor at Belmont University Law School, co-wrote an op-ed in the New York Times with immigration lawyer and adjunct professor, David Strange, today arguing that United States v. Windsor should not be interpreted to allow the conferral of federal immigration benefits to same-sex binational couples.
The opinion relies on the plenary power of Congress over immigration law to make its point. They wrote, "[u]nder the Constitution, as the decisions in Windsor and Adams recognize, Congress has almost total power over immigration, and its decisions in this realm are subject to limited judicial review. Where there is only a rational basis for Congress’s exercise of power, whether articulate or not, courts must uphold the immigration laws that Congress enacts."
Notably, the authors contended that Windsor did not overrule Adams v. Howerton, a case in which the Ninth Circuit held that under the Immigration and Nationality Act, the term "spouse" does not refer to a same-sex partner. Windsor's impact with respect to federal immigration benefits, according to the authors, should be limited to same-sex marriages entered in the 13 states that currently allow them.
Here's the link to the op-ed.