Supreme Court Rulings
As long as a person does not voluntarily renounce or abandon his citizenship . . . I believe his fundamental right of citizenship is secure.
—Chief Justice Earl Warren, 1958
Several decisions made by the Supreme Court have shifted the benchmark for stripping away citizenship. In the past, the policy of expatriation was introduced mainly as a punishment for “un-American activities.” Since 1960, the focus has shifted to the citizen’s own desire to be expatriated. That is, citizenship is revoked only after the state has shown that the citizen intended to relinquish this status of his or her own volition. During the recent and continuing “War on Terror” politicians have been once again calling to change the interpretation of expatriation policy in the Constitution—so far, without success. In a previous chapter, I covered the initiation of expatriation policies in the United States. The present chapter looks at the current state of expatriation, including conflicting political and philosophical ideals that shape it, legal developments that affect it, and shifting power relations among the three branches of government, which also have a role. Different understandings of the purpose and meaning of the national order and of citizenship can coexist, although they are in conflict within a single polity.
During the second half of the twentieth century, the balance of power in decisions regarding to expatriation shifted from Congress and the administration toward the courts. In 1958, the Supreme Court effectively declared its ultimate authority over such matters and thus restricted, for the first time, the power of Congress to forcibly revoke American citizenship. The Court held that the use of denationalization as a punishment was unconstitutional under the Eighth Amendment since it constitutes “cruel and unusual punishment.” However, the Court was still divided over the grounds for expatriation. Some justices maintained that only a voluntary renunciation could terminate the tie between the individual and the state; others continued to maintain that this connection should be dependent on the circumstances and that Congress, as the representative of the people, should have the last word. While the Court resolved this quandary in 1967, arguing that involuntary loss of citizenship was prohibited by the Fourteenth Amendment, it took the legislative branch twenty-five additional years to repeal most of the grounds for forced expatriation. It took even longer for the administration to accept that change, and it can be argued that some members of society still assume that some acts deserve to be punished by a revocation of American citizenship.
Today, there are seven remaining acts in the Immigration and Nationality Act Section 349 that could result in the loss of citizenship—except for subsection (a) 5 (renunciation of American nationality in a foreign state), all were originally intended to penalize felonious Americans. Subsections (a) 1 and 2 (becoming naturalized and taking an oath of allegiance in a foreign state) were both legislated in the 1907 Expatriation Act. Although the underlying motive of this legislation was ostensibly to prevent problems associated with the possession of dual nationality or allegiance, the statute clearly authorized the denationalization of U.S. citizens who had no desire to lose their American nationality.1 Subsections (a) 3 and 4 (serving in the army or employment in the government of a foreign state) were initiated during the Second World War in the Nationality Act of 1940. Although some congressmen explicitly said this was not a punishment, this statute included a penalty for actions that did not involve the assumption of a new nationality. Subsection (a) 6 (renouncing American citizenship in the territory of the United States during war) was clearly established in 1944 to allow the expatriation on racial grounds of Japanese Americans who were held in relocation camps throughout the United States. Subsection (a) 7 (committing any act of treason) was legislated in the 1954 Expatriation Act and refers to the persecution of Communists and their sympathizers during the Cold War. In addition to the implicit punitive goal of this legislation, which is apparent from the deliberations around the passage of this law, this decree explicitly refers to the violation of several sections of Title 18 of the U.S. Code—Crimes and Criminal Procedure. As I mentioned, the only exception is subsection (a) 5, which deals with the voluntary renunciation of American citizenship but even here, there are many reasons to suspect that this ground for expatriation is not entirely voluntary.
In the previous chapters, I showed that, starting at the end of the nineteenth century, treason, desertion, or any act that appeared to imply the adoption of a new nationality could be a reason to expatriate citizens. Today, those acts must be combined not only with the purpose of acquiring another nationality, but also with the intent to renounce American citizenship. More importantly, it is incumbent upon the state to prove this intent. Thus the main change, beginning in the second half of the twentieth century, is that, today, the State Department is required to prove that acts implying the adoption of a new nationality were undertaken with the explicit intention of relinquishing American citizenship.
The Supreme Court’s Interpretation of Expatriation
During the second half of the twentieth century, the perception of expatriation as a policy changed dramatically. This transformation can be attributed largely to initiatives of the judicial branch, beginning with Warren Court. Beginning in 1958, judges started to question the constitutional legality of forced expatriation. Over the years, the U.S. Supreme Court has overturned many of the previous grounds for the revocation of citizenship as unconstitutional. In compliance with the Court, Congress repealed the provisions that revoked citizenship for draft evasion, desertion, voting in a foreign country, the 1952 addition to the subversion principle that allowed the government to deport immigrants or naturalized citizens engaged in subversive, especially allegedly communist, activities, and residence abroad. A perusal of the Court’s decisions on these issues makes it patently clear that expatriation was originally initiated as a punishment. In other words, in concluding that the loss of citizenship should not be inflicted as a punishment, the Supreme Court highlighted the fact that in the past it had indeed been viewed as a penalty.
Private Albert L. Trop was a natural-born citizen of the United States who deserted from an army stockade in 1944. He was subsequently court-martialed, found guilty, and sentenced to three years of hard labor, forfeiture of pay, and a dishonorable discharge. In 1952, Trop applied for a passport in New York. His application was denied because the Nationality Act of 1940 provided that members of the armed forces of the United States who deserted would lose their citizenship.2 Trop filed suit in federal courts seeking declaratory judgment that he was a U.S. citizen. The district court ruled in favor of the government, and the U.S. Court of Appeals for the Second Circuit upheld the decision of the district court.
On the appeal in Trop v. Dulles,3 a five-to-four decision of the Supreme Court concluded that stripping of American citizenship as a punishment was unconstitutional in terms of the Eighth Amendment’s prohibition on inflicting “cruel and unusual punishment” on American citizens, and therefore reversed the district court decision. As Chief Justice Earl Warren wrote,
It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. . . . This punishment is offensive to the cardinal principles for which the constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. . . . Citizenship is not a license that expires upon misbehavior. The duties of citizenship are numerous, and the discharge of many of these obligations is essential to the security and wellbeing of the Nation. . . . But citizenship is not lost every time a duty of citizenship is shirked. And the deprivation of citizenship is not a weapon that the government may use to express its displeasure at a citizen’s conduct, however reprehensible that conduct may be. As long as a person does not voluntarily renounce or abandon his citizenship . . . I believe his fundamental right of citizenship is secure.4
Chief Justice Earl Warren maintained that citizenship should not be rescinded by Congress. This novel interpretation of the power of the United States Congress to strip away citizenship corresponds to the “agenda of rights” promoted by the Warren Court. That is, the commitment of the justices in the 1960s and 1970s was to a tolerant society where people’s identities would flourish. During the sixteen years (1953–1969) during which Earl Warren served as Chief Justice, the Courts regularly handed down opinions that transformed American constitutional doctrine and American society.5 Although the most famous decision was in Brown v. Board of Education (1954),6 wherein the Supreme Court declared that racial segregation in public schools was unconstitutional, the Warren Court made many other transformational rulings, including for example, ensuring political equality in the form of “one person, one vote” by ruling that state congressional districts of unequal size were unconstitutional;7