Expatriation: Loss of Citizenship

Clause 4. The Congress shall have Power *** To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.


Nature and Scope of Congress’ Power

Naturalization has been defined by the Supreme Court as “the act of adopting a foreigner, and clothing him with the privileges of a native citizen.”1214 In the Dred Scott case,1215 the Court asserted that the power of Congress under this clause applies only to “persons born in a foreign country, under a foreign government.”1216 These dicta are much too narrow to describe the power that Congress has actually exercised on the subject. The competence of Congress in this field merges, in fact, with its indefinite, inherent powers in the field of foreign relations. “As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries.”1217

Congress’ power over naturalization is an exclusive power; no State has the power to constitute a foreign subject a citizen of the United States.1218 But power to naturalize aliens may be, and was early, devolved by Congress upon state courts of record.1219 And States may confer the right of suffrage upon resident aliens who have declared their intention to become citizens and many did so until recently.1220

Citizenship by naturalization is a privilege to be given, qualified, or withheld as Congress may determine; an individual may claim it as a right only upon compliance with the terms Congress imposes.1221 This interpretation makes of the naturalization power the only power granted in § 8 of Article I that is unrestrained by constitutional limitations on its exercise. Thus, the first naturalization act enacted by the first Congress restricted naturalization to “free white persons[s],”1222 which was expanded in 1870 so that persons of “African nativity and . . . descent” were entitled to be naturalized.1223 Orientals were specifically excluded from eligibility in 1882,1224 and the courts enforced these provisions without any indication that constitutional issues were thereby raised.1225 These exclusions are no longer law. Present naturalization statutes continue and expand on provisions designed to bar subversives, dissidents, and radicals generally from citizenship.1226

1214 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 162 (1892).

1215 Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

1216 60 U.S. at 417, 419.

1217 Mackenzie v. Hare, 239 U.S. 299, 311 (1915).

1218 Chirac v. Chirac, 15 U.S. (2 Wheat.) 259, 269 (1817); United States v. Wong Kim Ark, 169 U.S. 649, 701 (1898).

1219 The first naturalization act, 1 Stat. 103 (1790), so provided. See 8 U.S.C. § 1421. In Holmgren v. United States, 217 U.S. 509 (1910), it was held that Congress may provide for the punishment of false swearing in the proceedings in state courts.

1220 Spragins v. Houghton, 3 Ill. 377 (1840); Stewart v. Foster, 2 Binn. (Pa.) 110 (1809). See K. PORTER, A HISTORY OF SUFFRAGE IN THE UNITED STATES ch. 5 (1918).

1221 United States v. MacIntosh, 283 U.S. 605, 615 (1931); Fong Yue Ting v. United States, 149 U.S. 698, 707–708 (1893). A caveat to this statement is that with regard to persons naturalized in the United States the qualification may only be a condition precedent and not a condition subsequent, Schneider v. Rusk, 377 U.S. 163 (1964), whereas persons born abroad who are made citizens at birth by statute if one or both of their parents are citizens are subject to conditions subsequent. Rogers v. Bellei, 401 U.S. 815 (1971).

1222 1 Stat. 103 (1790).

1223 Act of July 14, 1870, § 7, 16 Stat. 254, 256.

1224 Act of May 6, 1882, § 1, 22 Stat. 58.

1225 Cf. Ozawa v. United States, 260 U.S. 178 (1922); United States v. Bhagat Singh Thind, 261 U.S. 204 (1923); Toyota v. United States, 268 U.S. 402 (1925); Morrison v. California, 291 U.S. 82 (1934). The Court refused to review the only case in which the constitutional issue was raised and rejected. Kharaiti Ram Samras v. United States, 125 F. 2d 879 (C.A. 9, 1942), cert. denied, 317 U.S. 634 (1942).

1226 The Alien and Sedition Act of 1798, 1 Stat. 570, empowered the President to deport any alien he found dangerous to the peace and safety of the Nation. In 1903, Congress provided for denial of naturalization and for deportation for mere belief in certain doctrines, i.e., anarchy. Act of March 3, 1903, 32 Stat. 1214. See United States ex rel. Turner v. Williams, 194 U.S. 279 (1904). The range of forbidden views was broadened in 1918. Act of October 15, 1918, § 1, 40 Stat. 1012. The present law is found in 8 U.S.C. § 1424 and is discussed in The Naturalization of Aliens, infra.

Although the usual form of naturalization is through individual application and official response on the basis of general congressional rules, naturalization is not so limited. Citizenship can be conferred by special act of Congress,1227 it can be conferred collectively either through congressional action, such as the naturalization of all residents of an annexed territory or of a territory made a State,1228 or through treaty provision.1229

Categories of Citizens: Birth and Naturalization

The first sentence of § 1 of the Fourteenth Amendment contemplates two sources of citizenship and two only: birth and naturalization.1230 This contemplation is given statutory expression in § 301 of the Immigration and Nationality Act of 1952,1231 which itemizes those categories of persons who are citizens of the United States at birth; all other persons in order to become citizens must pass through the naturalization process. The first category merely tracks the language of the first sentence of § 1 of the Fourteenth Amendment in declaring that all persons born in the United States and subject to the jurisdiction thereof are citizens by birth.1232 But there are six other categories of citizens by birth. They are: (2) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe, (3) a person born outside the United States of citizen parents one of whom has been resident in the United States, (4) a person born outside the United States of one citizen parent who has been continuously resident in the United States for one year prior to the birth and of a parent who is a national but not a citizen, (5) a person born in an outlying possession of the United States of one citizen parent who has been continuously resident in the United States or an outlying possession for one year prior to the birth, (6) a person of unknown parentage found in the United States while under the age of five unless prior to his twenty-first birthday he is shown not to have been born in the United States, and (7) a person born outside the United States of an alien parent and a citizen parent who has been resident in the United States for a period of ten years, provided the person is to lose his citizenship unless he resides continuously in the United States for a period of five years between his fourteenth and twenty-eighth birthdays.

1227 E.g., 77 Stat. 5 (1963) (making Sir Winston Churchill an “honorary citizen of the United States.”).

1228 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 (1892); Contzen v. United States, 179 U.S. 191 (1900).

1229 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 164, 168–169 (1892).

1230 United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898).

1231 66 Stat. 235, 8 U.S.C. § 1401.

1232 § 301(a)(1), 8 U.S.C. § 1401(a)(1).

Subsection (7) citizens must satisfy the condition subsequent of five years continuous residence within the United States between the ages of fourteen and twenty-eight, a requirement held to be constitutional,1233 which means in effect that for constitutional purposes, according to the prevailing interpretation, there is a difference between persons born or naturalized in, that is, within, the United States and persons born outside the confines of the United States who are statutorily made citizens.1234 The principal difference is that the former persons may not be involuntarily expatriated whereas the latter may be, subject only to due process protections.1235

1233 Rogers v. Bellei, 401 U.S. 815 (1971).

1234 Compare Schneider v. Rusk, 377 U.S. 163 (1964); Afroyim v. Rusk, 387 U.S. 253 (1967). It will be noted that in practically all cases persons statutorily made citizens at birth will be dual nationals, having the citizenship of the country where they were born. Congress has never required a citizen having dual nationality to elect at some point one and forsake the other but it has enacted several restrictive statutes limiting the actions of dual nationals which have occasioned much litigation. E.g., Savorgnan v. United States, 338 U.S. 491 (1950); Kawakita v. United States, 343 U.S. 717 (1952); Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Schneider v. Rusk, 377 U.S. 163 (1964); Rogers v. Bellei, 401 U.S. 815 (1971).

1235 Cf. Rogers v. Bellei, 401 U.S. 815, 836 (1971); Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Perez v. Brownell, 356 U.S. 44, 58–62 (1958).

The Naturalization of Aliens

Although, as has been noted, throughout most of our history there were significant racial and ethnic limitations upon eligibility for naturalization, the present law prohibits any such discrimination.

“The right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex or because such person is married.”1236 However, any person “who advocates or teaches, or who is a member of or affiliated with any organization that advocates or teaches . . . opposition to all organized government,” or “who advocates or teaches or who is a member of or affiliated with any organization that advocates or teaches the overthrow by force or violence or other unconstitutional means of the Government of the United States” or who is a member of or affiliated with the Communist Party, or other communist organizations, or other totalitarian organizations is ineligible.1237 These provisions moreover are “applicable to any applicant for naturalization who at any time within a period of ten years immediately preceding the filing of the petition for naturalization or after such filing and before taking the final oath of citizenship is, or has been found to be, within any of the classes enumerated within this section, notwithstanding that at the time the petition is filed he may not be included within such classes.”1238

Other limitations on eligibility are also imposed. Eligibility may turn upon the decision of the responsible officials whether the petitioner is of “good moral character.”1239 The immigration and nationality laws themselves include a number of specific congressional determinations that certain persons do not possess “good moral character,” including persons who are “habitual drunkards,”1240 adulterers,1241 polygamists or advocates of polygamy,1242 gamblers,1243 convicted felons,1244 and homosexuals.1245 In order to petition for naturalization, an alien must have been resident for at least five years and to have possessed “good moral character” for all of that period.

1236 § 311, 66 Stat. 239 (1952), 8 U.S.C. § 1422.

1237 § 313(a), 66 Stat. 240 (1952), 8 U.S.C. § 1424(a). Whether “mere” membership is sufficient to constitute grounds for ineligibility is unclear. Compare Galvan v. Press, 347 U.S. 522 (1954), with Berenyi v. Immigration Director, 385 U.S. 630 (1967).

1238 § 313(c), 66 Stat. 241 (1952), 8 U.S.C. § 1424(c).

1239 § 316(a)(3), 66 Stat. 242, 8 U.S.C. § 1427(a)(3).

1240 § 101(f)(1), 66 Stat. 172, 8 U.S.C. § 1101(f)(1).

1241 § 101(f)(2), 66 Stat. 172, 8 U.S.C. § 1101(f)(2).

1242 § 212(a)(11), 66 Stat. 182, 8 U.S.C. § 1182(a)(11).

1243 § 101(f)(4) and (5), 66 Stat. 172, 8 U.S.C. § 1101(f)(4) and (5).

1244 § 101(f)(7) and (8), 66 Stat. 172, 8 U.S.C. § 1101(f)(7) and (8).

1245 § 212(a)(4), 66 Stat. 182, 8 U.S.C. § 1182(a)(4), barring aliens afflicted with “psychopathic personality,” a congressional euphemism including homosexuality. Boutilier v. Immigration and Naturalization Service, 387 U.S. 118 (1967).

The process of naturalization culminates in the taking in open court of an oath “(1) to support the Constitution of the United States; (2) to renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the petitioner was before a subject or citizen; (3) to support and defend the Constitution and the laws of the United States against all enemies, foreign and domestic; (4) to bear true faith and allegiance to the same; and (5) (A) to bear arms on behalf of the United States when required by the law, or (B) to perform noncombatant service in the Armed Forces of the United States when required by the law, or (C) to perform work of national importance under civilian direction when required by law.”1246

Any naturalized person who takes this oath with mental reservations or conceals or misrepresents beliefs, affiliations, and conduct, which under the law disqualify one for naturalization, is subject, upon these facts being shown in a proceeding brought for the purpose, to have his certificate of naturalization cancelled.1247 Moreover, if within a year of his naturalization a person joins an organization or becomes in any way affiliated with one which was a disqualification for naturalization if he had been a member at the time, the fact is made prima facie evidence of his bad faith in taking the oath and grounds for instituting proceedings to revoke his admission to citizenship.1248

Rights of Naturalized Persons

Chief Justice Marshall early stated in dictum that “[a] naturalized citizen . . . becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national legislature is, to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual.”1249 A similar idea was expressed in Knauer v. United States.1250 “Citizenship obtained through naturalization is not a second-class citizenship.... [It] carries with it the privilege of full participation in the affairs of our society, including the right to speak freely, to criticize officials and administrators, and to promote changes in our laws including the very Charter of our Government.”

1246 § 337(a), 66 Stat. 258 (1952), 8 U.S.C. § 1448(a). In United States v. Schwimmer, 279 U.S. 644 (1929), and United States v. MacIntosh, 283 U.S. 605 (1931), a divided Court held that clauses (3) and (4) of the oath, as then prescribed, required the candidate for naturalization to be willing to bear arms for the United States, thus disqualifying conscientious objectors. These cases were overturned, purely as a matter of statutory interpretation by Girouard v. United States, 328 U.S. 61 (1946), and Congress codified the result, 64 Stat. 1017 (1950), as it now appears in the cited statute.

1247 § 340(a), 66 Stat. 260 (1952), 8 U.S.C. § 1451(a). See Kungys v. United States, 485 U.S. 759 (1988) (badly fractured Court opinion dealing with the statutory requirements in a denaturalization proceeding under this section). And see Johannessen v. United States, 225 U.S. 227 (1912). Congress has imposed no time bar applicable to proceedings to revoke citizenship, so that many years after naturalization has taken place a naturalized citizen remains subject to divestment upon proof of fraud. Costello v. United States, 365 U.S. 265 (1961); Polites v. United States, 364 U.S. 426 (1960); Knauer v. United States, 328 U.S. 654 (1946); Fedorenko v. United States, 449 U. S. 490 (1981).

1248 340(c), 66 Stat. 261 (1952), 8 U.S.C. § 1451(c). The time period had previously been five years.

1249 Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 737, 827 (1824). One must be aware, however, that this language does not appear in any case having to do with citizenship or naturalization or the rights of naturalized citizens and its force may be therefore questioned. Compare Afroyim v. Rusk, 387 U.S. 253, 261 (1967) (Justice Black for the Court: “a mature and well-considered dictum . . .”), with id. at 275–276 (Justice Harlan dissenting: the dictum, “cannot have been intended to reach the question of citizenship.”). The issue in Osborn was the right of the Bank to sue in federal court. Osborn had argued that the fact that the bank was chartered under the laws of the United States did not make any legal issue involving the bank one arising under the laws of the United States for jurisdictional purposes; to argue the contrary, Osborn contended, was like suggesting that the fact that persons were naturalized under the laws of Congress meant such persons had an automatic right to sue in federal courts, unlike natural-born citizens. The quoted language of Marshall’s rejects this attempted analogy.

1250 328 U.S. 654, 658 (1946).

Despite these dicta, it is clear that particularly in the past but currently as well a naturalized citizen has been and is subject to requirements not imposed on native-born citizens. Thus, as we have noted above, a naturalized citizen is subject at any time to have his good faith in taking the oath of allegiance to the United States inquired into and to lose his citizenship if lack of such faith is shown in proper proceedings.1251 And the naturalized citizen within a year of his naturalization will join a questionable organization at his peril.1252 In Luria v. United States,1253 the Court sustained a statute making prima facie evidence of bad faith a naturalized citizen’s assumption of residence in a foreign country within five years after the issuance of a certificate of naturalization. But in Schneider v. Rusk,1254 the Court voided a statute that provided that a naturalized citizen should lose his United States citizenship if following naturalization he resided continuously for three years in his former homeland. “We start,” Justice Douglas wrote for the Court, “from the premise that the rights of citizenship of the native-born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President.”1255 The failure of the statute, the Court held, was that it impermissibly distinguished between native-born and naturalized citizens, denying the latter the equal protection of the laws.1256 “This statute proceeds on the impermissible assumption that naturalized citizens as a class are less reliable and bear less allegiance to this country than do the native-born. This is an assumption that is impossible for us to make.... A native-born citizen is free to reside abroad indefinitely without suffering loss of citizenship. The discrimination aimed at naturalized citizens drastically limits their rights to live and work abroad in a way that other citizens may. It creates indeed a second-class citizenship. Living abroad, whether the citizen be naturalized or native-born, is no badge of lack of allegiance and in no way evidences a voluntary renunciation of nationality and allegiance.”1257

1251 Johannessen v. United States, 225 U.S. 227 (1912); Knauer v. United States, 328 U.S. 654 (1946); Costello v. United States, 365 U.S. 265 (1961).

1252 See 8 U.S.C. § 1451(c).

1253 231 U.S. 9 (1913). The provision has been modified to reduce the period to one year. 8 U.S.C. § 1451(d).

1254 377 U.S. 163 (1964).

1255 377 U.S. at 165.

1256 While there is no equal protection clause specifically applicable to the Federal Government, it is established that the due process clause of the Fifth Amendment forbids discrimination in much the same manner as the equal protection clause of the Fourteenth Amendment.

1257 Schneider v. Rusk, 377 U.S. 163, 168–169 (1964).

The Schneider equal protection rationale was abandoned in the next case in which the Court held that the Fourteenth Amendment forbade involuntary expatriation of naturalized persons.1258 But in Rogers v. Bellei,1259 the Court refused to extend this holding to persons statutorily naturalized at birth abroad because one of their parents was a citizen and similarly refused to apply Schneider. Thus, one who failed to honor a condition subsequent had his citizenship revoked. “Neither are we persuaded that a condition subsequent in this area impresses one with ‘second-class citizenship.’ That cliche is too handy and too easy, and, like most cliches, can be misleading. That the condition subsequent may be beneficial is apparent in the light of the conceded fact that citizenship was fully deniable. The proper emphasis is on what the statute permits him to gain from the possible starting point of noncitizenship, not on what he claims to lose from the possible starting point of full citizenship to which he has no constitutional right in the first place. His citizenship, while it lasts, although conditional, is not ‘second-class.’”1260

1258 Afroyim v. Rusk, 387 U.S. 253 (1967).

1259 401 U.S. 815 (1971).

1260 401 U.S. at 835–36.

It is not clear where the progression of cases has left us in this area. Clearly, naturalized citizens are fully entitled to all the rights and privileges of those who are citizens because of their birth here. But it seems equally clear that with regard to retention of citizenship, naturalized citizens are not in the secure position of citizens born here.1261

On another point, the Court has held that, absent a treaty or statute to the contrary, a child born in the United States who is taken during minority to the country of his parents’ origin, where his parents resume their former allegiance, does not thereby lose his American citizenship and that it is not necessary for him to make an election and return to the United States.1262 On still another point, it has been held that naturalization is so far retroactive as to validate an acquisition of land prior to naturalization as to which the alien was under a disability.1263

Expatriation: Loss of Citizenship

The history of the right of expatriation, voluntarily on the part of the citizen or involuntarily under duress of statute, is shadowy in United States constitutional law. Justice Story, in the course of an opinion,1264 and Chancellor Kent, in his writings,1265 accepted the ancient English doctrine of perpetual and unchangeable allegiance to the government of one’s birth, a citizen being precluded from renouncing his allegiance without permission of that government. The pre-Civil War record on the issue is so vague because there was wide disagreement on the basis of national citizenship in the first place, with some contending that national citizenship was derivative from state citizenship, which would place the power of providing for expatriation in the state legislatures, and with others contending for the primacy of national citizenship, which would place the power in Congress.1266 The citizenship basis was settled by the first sentence of § 1 of the Fourteenth Amendment, but expatriation continued to be a muddled topic. An 1868 statute specifically recognized “the right of expatriation” by individuals, but it was directed to affirming the right of foreign nationals to expatriate themselves and to become naturalized United States citizens.1267 An 1865 law provided for the forfeiture of the “rights of citizenship” of draft-dodgers and deserters, but whether the statute meant to deprive such persons of citizenship or of their civil rights is unclear.1268 Beginning in 1940, however, Congress did enact laws designed to strip of their citizenship persons who committed treason,1269 deserted the armed forces in wartime,1270 left the country to evade the draft,1271 or attempted to overthrow the Government by force or violence.1272 In 1907, Congress provided that female citizens who married foreign citizens were to have their citizenship held “in abeyance” while they remained wedded but to be entitled to reclaim it when the marriage was dissolved.1273

1261 At least, there is a difference so long as Afroyim prevents Congress from making expatriation the consequence of certain acts when done by natural born citizens as well.

1262 Perkins v. Elg, 307 U.S. 325 (1939). The qualifying phrase “absent a treaty or statute . . .” is error now, so long as Afroyim remains in effect. But note Rogers v. Bellei, 401 U.S. 815, 832–833 (1971).

1263 Governeur v. Robertson, 24 U.S. (11 Wheat.) 332 (1826); Osterman v. Baldwin, 73 U.S. (6 Wall.) 116 (1867); Manuel v. Wulff, 152 U.S. 505 (1894).

1264 Shanks v. DuPont, 28 U.S. (3 Pet.) 242, 246 (1830).

1265 2 J. KENT, COMMENTARIES 49–50 (1827).


1267 Act of July 27, 1868, 15 Stat. 223. While the Act’s preamble rhetorically proclaims the “natural and inherent right of all people” to expatriate themselves, its title is “An Act concerning the Rights of American Citizens in foreign States” and its operative parts are concerned with that subject. It has long been taken, however, as a general proclamation of United States recognition of the right of United States citizens to expatriate themselves. Mackenzie v. Hare, 239 U.S. 299, 309 (1915); Mandoli v. Acheson, 344 U.S. 133, 135–136 (1952). Cf. Savorgnan v. United States, 338 U.S. 491, 498 n. 11 (1950).

1268 The Enrollment Act of March 3, 1865, § 21, 13 Stat. 487, 490. The language of the section appears more consistent with a deprivation of civil rights than of citizenship. Note also that § 14 of the Wade-Davis Bill, pocket-vetoed by President Lincoln, specifically provided that any person holding office in the Confederate Government “is hereby declared not to be a citizen of the United States.” 6 J. RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS 223 (1899).

1269 Nationality Act of 1940, 54 Stat. 1169.

1270 Id.

1271 58 Stat. 746 (1944).

1272 68 Stat. 1146 (1954).

1273 34 Stat. 1228 (1907), repealed by 42 Stat. 1021 (1922).

About the simplest form of expatriation, the renunciation of citizenship by a person, there is no constitutional difficulty. “Expatriation is the voluntary renunciation or abandonment of nationality and allegiance.”1274 But while the Court has hitherto insisted on the voluntary character of the renunciation, it has sustained the power of Congress to prescribe conditions and circumstances the voluntary entering into of which constitutes renunciation; the person need not intend to renounce so long as he intended to do what he did in fact do.1275

The Court first encountered the constitutional issue of forced expatriation in the rather anomalous form of the statute,1276 which placed in limbo the citizenship of any American female who married a foreigner. Sustaining the statute, the Court relied on the congressional foreign relations power exercised in order to prevent the development of situations that might entangle the United States in embarrassing or hostile relationships with a foreign country. Noting too the fictional merging of identity of husband and wife, the Court thought it well within congressional power to attach certain consequences to these actions, despite the woman’s contrary intent and understanding at the time she entered the relationship.1277

1274 Perkins v. Elg, 307 U.S. 325, 334 (1939).

1275 Mackenzie v. Hare, 239 U.S. 299, 309, 311–312 (1915); Savorgnan v. United States, 338 U.S. 491, 506 (1950).

1276 34 Stat. 1228 (1907).

1277 Mackenzie v. Hare, 239 U.S. 299 (1915).

Beginning in 1958, the Court had a running encounter with the provisions of the 1952 Immigration and Nationality Act, which prescribed expatriation for a lengthy series of actions.1278 In 1958, a five-to-four decision sustained the power to divest a dual national of his United States citizenship because he had voted in an election in the other country of which he was a citizen.1279 But at the same time, another five-to-four decision, in which a majority rationale was lacking, struck down punitive expatriation visited on persons convicted by court-martial of desertion from the armed forces in wartime.1280 In the next case, the Court struck down another punitive expatriation visited on persons who, in time of war or emergency, leave or remain outside the country in order to evade military service.1281 And in the following year, the Court held unconstitutional a section of the law that expatriated a naturalized citizen who returned to his native land and resided there continuously for a period of three years.1282

1278 See generally 8 U.S.C. §§ 1481–1489. Among the acts for which loss of citizenship is prescribed are (1) obtaining naturalization in a foreign state, (2) taking an oath of allegiance to a foreign state, (3) serving in the armed forces of a foreign state without authorization and with consequent acquisition of foreign nationality, (4) assuming public office under the government of a foreign state for which only nationals of that state are eligible, (5) voting in an election in a foreign state, (6) formally renouncing citizenship before a United states foreign service officer abroad, (7) formally renewing citizenship within the United States in time of war, subject to approval of the Attorney General, (8) being convicted and discharged from the armed services for desertion in wartime, (9) being convicted of treason or of an attempt to overthrow forcibly the Government of the United States, (10) fleeing or remaining outside the United States in wartime or a proclaimed emergency in order to evade military service, and (11) residing abroad if a naturalized citizen, subject to certain exceptions, for three years in the country of his birth or in which he was formerly a national or for five years in any other foreign state. Several of these sections have been declared unconstitutional, as explained in the text.

1279 Perez v. Brownell, 356 U.S. 44 (1958). For the Court, Justice Frankfurter sustained expatriation as a necessary exercise of the congressional power to regulate the foreign relations of the United States to prevent the embarrassment and potential for trouble inherent in our nationals voting in foreign elections. Justice Whittaker dissented because he saw no problem of embarrassment or potential trouble if the foreign state permitted aliens or dual nationals to vote. Chief Justice Warren and Justices Black and Douglas denied that expatriation is within Congress’ power to prescribe for an act, like voting, which is not necessarily a sign of intention to relinquish citizenship.

1280 Trop v. Dulles, 356 U.S. 86 (1958). Chief Justice Warren for himself and three Justices held that expatriation for desertion was a cruel and unusual punishment proscribed by the Eighth Amendment. Justice Brennan concurred on the ground of a lack of the requisite relationship between the statute and Congress’ war powers. For the four dissenters, Justice Frankfurter argued that Congress had power to impose loss of citizenship for certain activity and that there was a rational nexus between refusal to perform a duty of citizenship and deprivation of citizenship. Justice Frankfurter denied that the penalty was cruel and unusual punishment and denied that it was punishment at all “in any valid constitutional sense.” Id. at 124.

1281 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). For the Court Justice Goldberg held that penal expatriation effectuated solely by administrative determination violated due process because of the absence of procedural safeguards. Justices Black and Douglas continued to insist Congress could not deprive a citizen of his nationality at all. Justice Harlan for the dissenters thought the statute a valid exercise of Congress’ war powers but the four dissenters divided two-to-two on the validity of a presumption spelled out in the statute.

1282 Schneider v. Rusk, 377 U.S. 163 (1964).

The cases up to this point had lacked a common rationale and would have seemed to permit even punitive expatriation under the proper circumstances. But, in Afroyim v. Rusk,1283 a five-to-four majority overruled the 1958 decision permitting expatriation for voting in a foreign election and announced a constitutional rule against all but purely voluntary renunciation of United States citizenship. The majority ruled that the first sentence of § 1 of the Fourteenth Amendment constitutionally vested citizenship in every person “born or naturalized in the United States” and that Congress was powerless to take that citizenship away.1284 The continuing vitality of this decision was called into question by another five-to-four decision in 1971, which technically distinguished Afroyim in upholding a congressionally-prescribed loss of citizenship visited upon a person who was statutorily naturalized “outside” the United States, and held not within the protection of the first sentence of § 1 of the Fourteenth Amendment.1285 Thus, while Afroyim was distinguished, the tenor of the majority opinion was hostile to its holding, and it may be that in a future case it will be overruled.

1283 387 U.S. 253 (1967).

1284 Justice Harlan, for himself and Justices Clark, Stewart, and White, argued in dissent that there was no evidence that the drafters of the Fourteenth Amendment had at all the intention ascribed to them by the majority. He would have found in Afroyim’s voluntary act of voting in a foreign election a voluntary renunciation of United States citizenship. 387 U.S. at 268.

1285 Rogers v. Bellei, 401 U.S. 815 (1971). The three remaining Afroyim dissenters plus Chief Justice Burger and Justice Blackmun made up the majority, the three remaining Justices of the Afroyim majority plus Justice Marshall made up the dissenters. The continuing vitality of Afroyim was assumed in Vance v. Terrazas, 444 U. S. 252 (1980), in which a divided Court upheld a congressionally-imposed standard of proof, preponderance of evidence, by which to determine whether one had by his actions renounced his citizenship.

The issue, then, of the constitutionality of congressionally-prescribed expatriation must be taken as unsettled.

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