Sessions v Morales-Santana statelessness. 21 The Court also agreed with the 2nd Circuit that preventing statelessness was a goal of some sections of the original Nationality Act of 1940, but not of the specific sections at issue in this case. 22 Like the 2nd Circuit, the Supreme Court rejected the argument that gender discrimination in the law was necessary to prevent statelessness. 23 As Justice Ginsburg, writing for the majority, put it: ‘the Government [has not] shown that the risk of statelessness disproportionately endangered the children of unwed US-citizen mothers’ as opposed to those of unwed fathers. 24 Gender discrimination, however, was not the only potential cause of statelessness at issue in this case. Statelessness may also arise from changes in the law that make it harder for children to gain a nationality at birth. Yet neither court addressed this fact. Instead, when crafting a remedy, both courts focused only on their constitutional powers and those of Congress, rather than on the goal of preventing statelessness or the human right to a nationality. In applying the one-year physical presence rule to both unwed US citizen fathers and mothers, the 2nd Circuit held that it had no power to strip citizenship from an individual as such powers lay only with Congress. 25 But while the Supreme Court acknowledged that the 2nd Circuit was correct in stating this general rule, 26 the majority decision held that the US Congress clearly intended the clause on unwed mothers to be an exception to an otherwise general rule for both married and unmarried persons. 27 In such cases, the Court determined it was required to remove the exception for unwed mothers, the one-year requirement, and apply the ten-year requirement to everyone. This method of crafting a remedy to an unconstitutional law, often called ‘levelling down’, 28 resulted in stripping citizenship from Mr Morales-Santana and, potentially, many others. 29 Morales-Santana provides an excellent example of how restricting nationality at birth can exacerbate the problem of statelessness, violating the right to a nationality. 30 Yet, the creation of statelessness as the result of restricting the right to a nationality at birth was not discussed by either court in crafting a remedy, 21 Morales-Santana (n 1) slip op 22. 22 ibid slip op 20. To determine legislative intent, an important part of US Supreme Court legal interpretation, the Court looked to the drafting of the original Nationality Act of 1940, which forms the basis of much of the modern law. 23 Morales-Santana (n 1) slip op 4, 19–23. 24 ibid slip op 23. 25 Morales-Santana v Lynch, 804 F 3d 520 (2nd Cir, 2015) 41. 26 Morales-Santana (n 1) slip op 23–28. The majority cited Heckler v Mathews, 465 US 728, 740 (1984), quoting Iowa–Des Moines National Bank v Bennett, 284 US 239, 247 (1931) in crafting a remedy. 27 Morales-Santana (n 1) slip op 28. 28 As the 2nd Circuit explained: ‘equal treatment’ might be achieved in any one of three ways: (1) striking both § 1409(c) and (a) entirely; (2) severing the one-year continuous presence provision in § 1409(c) and requiring every unwed citizen parent to satisfy the more onerous ten-year requirement if the other parent lacks citizenship; or (3) severing the ten-year requirement in § 1409(a) and § 1401(a)(7) and requiring every unwed citizen parent to satisfy the less onerous one-year continuous presence requirement if the other parent lacks citizenship. Morales-Santana v Lynch, 804 F 3d 520 (2nd Cir, 2015) 535–36. 29 Michael Dorf, ‘Equal Protection and Levelling Down as Schadenfreude’, on Michael Dorf, Dorf on Law (Blog, 14 June 2017) <http://www.dorfonlaw.org/2017/06/equal-protectionand-leveling-down-as.html>. 30 UN High Commissioner for Refugees, Good Practices Paper — Action 2: Ensuring That No Child is Born Stateless (Good Practices Paper, 2017) <https://www.refworld.org/docid/58cfab014.html>. 333