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ArtI.S8.C4.1.2.1 Expatriation

Article I, Section 8, 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; . . .

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,1 and Chancellor Kent, in his writings,2 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.3 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.4 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.5 Beginning in 1940, however, Congress did enact laws designed to strip of their citizenship persons who committed treason,6 deserted the armed forces in wartime,7 left the country to evade the draft,8 or attempted to overthrow the government by force or violence.9 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.10

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.11 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.12

The Court first encountered the constitutional issue of forced expatriation in the rather anomalous form of the statute,13 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.14

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.15 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.16 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.17 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.18 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.19

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,20 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.21 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.22 Thus, although Afroyim was distinguished, the tenor of the majority opinion was hostile to its holding, and it may be that a future case will overrule it.

The issue, then, of the constitutionality of congressionally prescribed expatriation is unsettled.

Footnotes

  1.  Jump to essay-1Shanks v. DuPont, 28 U.S. (3 Pet.) 242, 246 (1830).
  2.  Jump to essay-22 J. Kent, Commentaries 49–50 (1827).
  3.  Jump to essay-3J. Tenbroek, Anti-Slavery Origins of the Fourteenth Amendment 71–94 (1951); see generally J. Roche, The Early Development of United States Citizenship (1949).
  4.  Jump to essay-4Act 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, 135–36 (1952). Cf. Savorgnan v. United States, 338 U.S. 491, 498 n.11 (1950).
  5.  Jump to essay-5The 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).
  6.  Jump to essay-6Nationality Act of 1940, 54 Stat. 1169.
  7.  Jump to essay-7Id.
  8.  Jump to essay-858 Stat. 746 (1944).
  9.  Jump to essay-968 Stat. 1146 (1954).
  10.  Jump to essay-1034 Stat. 1228 (1907), repealed by 42 Stat. 1021 (1922).
  11.  Jump to essay-11Perkins v. Elg, 307 U.S. 325, 334 (1939).
  12.  Jump to essay-12Mackenzie v. Hare, 239 U.S. 299, 309, 311–12 (1915); Savorgnan v. United States, 338 U.S. 491, 506 (1950).
  13.  Jump to essay-1334 Stat. 1228 (1907).
  14.  Jump to essay-14Mackenzie v. Hare, 239 U.S. 299 (1915).
  15.  Jump to essay-15See 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.
  16.  Jump to essay-16Perez 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’s power to prescribe for an act, like voting, which is not necessarily a sign of intention to relinquish citizenship.
  17.  Jump to essay-17Trop 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’s 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.
  18.  Jump to essay-18Kennedy 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’s war powers but the four dissenters divided two-to-two on the validity of a presumption spelled out in the statute.
  19.  Jump to essay-19Schneider v. Rusk, 377 U.S. 163 (1964).
  20.  Jump to essay-20387 U.S. 253 (1967).
  21.  Jump to essay-21Justice 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.
  22.  Jump to essay-22Rogers 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.