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.''\1127\ In the Dred Scott case,\1128\ the Court asserted that the power of Congress under this clause applies only to ``persons born in a foreign country, under a foreign government.''\1129\ 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.''\1130\ \1127\Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 162 (1892). \1128\Scott v. Sandford, 19 How. (60 U.S.) 393 (1857). \1129\Id., 417, 419. \1130\Mackenzie v. Hare, 239 U.S. 299, 311 (1915).
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Congress' power over naturalization is an exclusive power; no State has the power to constitute a foreign subject a citizen of the United States.\1131\ But power to naturalize aliens may be, and was early, devolved by Congress upon state courts of record.\1132\
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.\1133\ \1131\Chirac v. Chirac, 2 Wheat. (15 U.S.) 259, 269 (1817); United States v. Wong Kim Ark, 169 U.S. 649, 701 (1898). \1132\The first naturalization act, 1 Stat. 103 (1790), so provided.
See 8 U.S.C. Sec. 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. \1133\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 (New York: 1918), ch. 5.
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This interpretation makes of the naturalization power the only power granted in Sec. 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],''\1135\ which was expanded in 1870 so that persons of ``African nativity and . . . descent'' were entitled to be naturalized.\1136\ Orientals were specifically excluded from eligibility in 1882,\1137\ and the courts enforced these provisions without any indication that constitutional issues were thereby raised.\1138\ These exclusions are no longer law.
Present naturalization statutes continue and expand on provisions designed to bar subversives, dissidents, and radicals generally from citizenship.\1139\ \1134\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). \1135\1 Stat. 103 (1790). \1136\Act of July 14, 1870, Sec. 7, 16 Stat. 254, 256. \1137\Act of May 6, 1882, Sec. 1, 22 Stat. 58. \1138\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 (9th Cir., 1942), cert. den., 317 U.S. 634 (1942). \1139\
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, Sec. 1, 40 Stat. 1012. The present law is found in 8 U.S.C. Sec. 1424 and is discussed infra, pp.268-270.
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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,\1140\ 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,\1141\ or through treaty provision.\1142\ \1140\E.g., 77 Stat. 5 (1963) (making Sir Winston Churchill an ``honorary citizen of the United States.''). \1141\Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 (1892); Contzen v. United States, 179 U.S. 191 (1900). \1142\Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 164, 168-169 (1892).
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The first sentence of Sec. 1 of the Fourteenth Amendment contemplates two sources of citizenship and two only: birth and naturalization.\1143\
This contemplation is given statutory expression in Sec. 301 of the Immigration and Nationality Act of 1952,\1144\ 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 Sec. 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.\1145\
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. \1143\United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). \1144\66 Stat. 235, 8 U.S.C. Sec. 1401. \1145\Sec. 301(a)(1), 8 U.S.C. Sec. 1401(a)(1)
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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,\1146\ 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.\1147\ The principal dif[[Page 268]]ference is that the former persons may not be involuntarily expatriated whereas the latter may be, subject only to due process protections.\1148\ \1146\Rogers v. Bellei, 401 U.S. 815 (1971). \1147\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). \1148\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).
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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.''\1149\ 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.\1150\
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.''\1151\ \1149\Sec. 311, 66 Stat. 239 (1952), 8 U.S.C. Sec. 1422. \1150\Sec. 313(a), 66 Stat. 240 (1952), 8 U.S.C. Sec. 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). \1151\Sec. 313(c), 66 Stat. 241 (1952), 8 U.S.C. Sec. 1424(c).
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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.''\1152\ The immigration and nationality laws themselves include a number of specific congressional determinations that certain persons do not possess ``good[[Page 269]]moral character,'' including persons who are ``habitual drunkards,''\1153\ adulterers,\1154\ polygamists or advocates of polygamy,\1155\ gamblers,\1156\ convicted felons,\1157\ and homosexuals.\1158\
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. \1152\Sec. 316(a)(3), 66 Stat. 242, 8 U.S.C. Sec. 1427(a)(3). \1153\Sec. 101(f)(1), 66 Stat. 172, 8 U.S.C. Sec. 1101(f)(1). \1154\Sec. 101(f)(2), 66 Stat. 172, 8 U.S.C. Sec. 1101(f)(2). \1155\Sec. 212(a)(11), 66 Stat. 182, 8 U.S.C. Sec. 1182(a)(11). \1156\Sec. 101(f) (4) and (5), 66 Stat. 172, 8 U.S.C. Sec. 1101(f) (4) and (5). \1157\Sec. 101(f) (7) and (8), 66 Stat. 172, 8 U.S.C. Sec. 1101(f) (7) and (8). \1158\Sec. 212(a)(4), 66 Stat. 182, 8 U.S.C. Sec. 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).
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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.''\1159\ \1159\Sec. 337(a), 66 Stat. 258 (1952), 8 U.S.C. Sec. 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.
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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.\1160\
Moreover, if within a year of his naturalization a person joins an organization or becomes in any way affiliated with one which was[[Page 270]]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.\1161\ \1160\Sec. 340(a), 66 Stat. 260 (1952), 8 U.S.C. Sec. 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). \1161\340(c), 66 Stat. 261 (1952), 8 U.S.C. Sec. 1451(c). The time period had previously been fve years
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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.''\1162\ A similar idea was expressed in Knauer v. United States.\1163\
``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.'' \1162\Osborn v. Bank of the United States, 9 Wheat. (22 U.S.) 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., 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. \1163\328 U.S. 654, 658 (1946).
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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.\1164\ And the naturalized citizen within a year of his naturalization will join a questionable organi[[Page 271]]zation at his peril.\1165\
In Luria v. United States,\1166\ 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,\1167\ 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.''\1168\ 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.\1169\
``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.''\1170\ \1164\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). \1165\See 8 U.S.C. Sec. 1451(c). \1166\231 U.S. 9 (1913).
The provision has been modified to reduce the period to one year. 8 U.S.C. Sec. 1451(d). \1167\377 U.S. 163 (1964). \1168\Id., 165. \1169\
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. \1170\Schneider v. Rusk, 377 U.S. 163, 168-169 (1964).
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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.\1171\ But in Rogers v. Bellei,\1172\ 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 subse[[Page 272]]quent 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.'''\1173\ \1171\Afroyim v. Rusk, 387 U.S. 253 (1967). \1172\401 U.S. 815 (1971). \1173\Id., 835-836.
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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.\1174\ \1174\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.
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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.\1175\
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.\1176\ \1175\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). \1176\Governeur v. Robertson, 11 Wheat. (24 U.S.) 332 (1826); Osterman v. Baldwin, 6 Wall. (73 U.S.) 116 (1867); Manuel v. Wulff, 152 U.S. 505 (1894).
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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,\1177\ and Chancellor Kent, in his writings,\1178\ 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[[Page 273]]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.\1179\
The citizenship basis was settled by the first sentence of Sec. 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.\1180\
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.\1181\ \1177\Shanks v. DuPont, 3 Pet. (28 U.S.) 242, 246 (1830). \1178\2 J. Kent, Commentaries (New York: 1827), 49-50. \1179\J. Tenbroek, Anti-Slavery Origins of the Fourteenth Amendment (New York: 1951), 71-94; see generally J. Roche, The Early Development of United States Citizenship (New York: 1949). \1180\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). \1181\The Enrollment Act of March 3, 1865, Sec. 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 Sec. 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 (Washington: 1899), 223.
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Beginning in 1940, however, Congress did enact laws designed to strip of their citizenship persons who committed treason,\1182\ deserted the armed forces in wartime,\1183\ left the country to evade the draft,\1184\ or attempted to overthrow the Government by force or violence.\1185\ 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.\1186\ \1182\Nationality Act of 1940, 54 Stat. 1169. \1183\Ibid. \1184\58 Stat. 746 (1944). \1185\68 Stat. 1146 (1954). \1186\34 Stat. 1228 (1907), repealed by 42 Stat. 1021 (1922).
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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 national[[Page 274]]ity and allegiance.''\1187\ 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.\1188\ \1187\Perkins v. Elg, 307 U.S. 325, 334 (1939). \1188\Mackenzie v. Hare, 239 U.S. 299, 309, 311-312 (1915); Savorgnan v. United States, 338 U.S. 491, 506 (1950).
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The Court first encountered the constitutional issue of forced expatriation in the rather anomalous form of the statute,\1189\ 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.\1190\ \1189\34 Stat. 1228 (1907). \1190\Mackenzie v. Hare, 239 U.S. 299 (1915).
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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.\1191\
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.\1192\ But at the same[[Page 275]]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.\1193\ 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.\1194\
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.\1195\ \1191\See generally 8 U.S.C. Sec. Sec. 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. \1192\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. \1193\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., 124. \1194\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. \1195\Schneider v. Rusk, 377 U.S. 163 (1964).
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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,\1196\ 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 Sec. 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.\1197\ 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[[Page 276]]upon a person who was statutorily naturalized ``outside'' the United States, and held not within the protection of the first sentence of Sec. 1 of the Fourteenth Amendment.\1198\
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. \1196\387 U.S. 253 (1967). \1197\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. \1198\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.
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The issue, then, of the constitutionality of congressionally-prescribed expatriation must be taken as unsettled.
The Power of Congress to Exclude Aliens
The power of Congress ``to exclude aliens from the United States and to prescribe the terms and conditions on which they come in'' is absolute, being an attribute of the United States as a sovereign nation. ``That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy.
Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be to that extent subject to the control of another power. . . . The United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory.''\1199\ \1199\Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581, 603, 604 (1889); see also Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893);
The Japanese Immigrant Case (Yamataya v. Fisher), 189 U.S. 86 (1903); United States ex rel. Turner v. Williams, 194 U.S. 279 (1904); Bugajewitz v. Adams, 228 U.S. 585 (1913); Hines v. Davidowitz, 312 U.S. 52 (1941); Kleindeist v. Mandel, 408 U. S. 753 (1972). In Galvan v. Press, 347 U.S. 522, 530-531 (1954),
Justice Frankfurter for the Court wrote: ``[M]uch could be said for the view, were we writing on a clean slate, that the Due Process Clause qualifies the scope of political discretion heretofore recognized as belonging to Congress in regulating the entry and deportation of aliens. . . . But the slate is not clean. As to the extent of the power of Congress under review, there is not merely `a page of history,' . . . but a whole volume. . . . [T]hat the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.''
Although the issue of racial discrimination was before the Court in Jean v. Nelson, 472 U.S. 846 (1985), in the context of parole for undocumented aliens, the Court avoided it, holding that statutes and regulations precluded INS considerations of race or national origin. Justices Marshall and Brennan, in dissent, argued for reconsideration of the long line of precedents and for constitutional restrictions on the Government. Id., 858.
Although aliens are ``an identifiable class of persons,'' who aside from the classification at issue ``are already subject to disadvantages not shared by the remainder of the community,'' Hampton v. Mow Sun Wong, supra, 102, Congress may treat them in ways that would violate the equal protection clause if a State should do it. Diaz, supra (residency requirement for welfare benefits); Fiallo, supra (sex and illegitimacy classifications).
Nonetheless in Mow Sun Wong, supra, 103, the Court observed that when the Federal Government asserts an overriding national interest as justification for a discriminatory rule that would violate the equal protection clause if adopted by a State, due process requires that it be shown that the rule was actually intended to serve that interest. The case struck down a classification that the Court thought justified by the interest asserted but that had not been imposed by a body charged with effectuating that interest. See Vergara v. Hampton, 581 F.2d 1281 (C.A. 7, 1978).
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[[Page 277]] Except for the Alien Act of 1798,\1200\ Congress went almost a century without enacting laws regulating immigration into the United States. The first such statute, in 1875, barred convicts and prostitutes\1201\ and was followed by a series of exclusions based on health, criminal, moral, economic, and subversion considerations.\1202\ Another important phase was begun with passage of the Chinese Exclusion Act in 1882,\1203\ which was not repealed until 1943.\1204\
In 1924, Congress enacted into law a national origins quota formula which based the proportion of admittable aliens on the nationality breakdown of the 1920 census, which, of course, was heavily weighed in favor of English and northern European ancestry.\1205\ This national origins quota system was in effect until it was repealed in 1965.\1206\ The basic law remains the Immigra[[Page 278]]tion and Nationality Act of 1952,\1207\ which, with certain revisions in 1965 and later piecemeal alterations, regulates who may be admitted and under what conditions; the Act, it should be noted, contains a list of 31 excludable classes of aliens.\1208\ \1200\Act of June 25, 1798, 1 Stat. 570.
The Act was part of the Alien and Sedition Laws and authorized the expulsion of any alien the President deemed dangerous. \1201\Act of March 3, 1875, 18 Stat. 477. \1202\22 Stat. 214 (1882) (excluding idiots, lunatics, convicts, and persons likely to become public charges); 23 Stat. 332 (1885), and 24 Stat. 414 (1887) (regulating importing cheap foreign labor); 26 Stat. 1084 (1891) (persons suffering from certain diseases, those convicted of crimes involving moral turpitude, paupers, and polygamists); 32 Stat. 1213 (1903) (epileptics, insane persons, professional beggars, and anarchists); 34 Stat. 898 (1907) (feeble-minded, children unaccompanied by parents, persons suffering with tuberculosis, and women coming to the United States for prostitution or other immoral purposes).
\1203\Act of May 6, 1882, 22 Stat. 58. \1204\Act of December 17, 1943, 57 Stat. 600. \1205\Act of May 26, 1924, 43 Stat. 153. \1206\Act of October 3, 1965, P.L. 89-236, 79 Stat. 911. \1207\Act of June 27, 1952, P.L. 82-414, 66 Stat. 163, 8 U.S.C. Sec. Sec. 1101 et seq. as amended. \1208\The list of excludable aliens may be found at 8 U.S.C. Sec. 1182. The list has been modified and classified by category in recent amendments.
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Numerous cases underscore the sweeping nature of the powers of the Federal Government to exclude aliens and to deport by administrative process persons in excluded classes. For example, in United States ex rel. Knauff v. Shaughnessy,\1209\ an order of the Attorney General excluding, on the basis of confidential information he would not disclose, a wartime bride, who was prima facie entitled to enter the United States,\1210\ was held to be unreviewable by the courts. Nor were regulations on which the order was based invalid as an undue delegation of legislative power.
``Normally Congress supplies the conditions of the privilege of entry into the United States. But because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power, e.g., as was done here, for the best interest of the country during a time of national emergency.
Executive officers may be entrusted with the duty of specifying the procedures for carrying out the congressional intent.''\1211\ However, when Congress has spelled out the basis for exclusion or deportation, the Court remains free to interpret the statute and review the administration of it and to apply it, often in a manner to mitigate the effects of the law on aliens.\1212\ \1209\338 U.S. 537 (1950).
See also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), in which the Court majority upheld the Government's power to exclude on the basis of information it would not disclose a permanent resident who had gone abroad for about nineteen months and was seeking to return on a new visa. But the Court will frequently read the applicable statutes and regulations strictly against the Government for the benefit of persons sought to be excluded. Cf. Delgadillo v. Carmichael, 332 U.S. 388 (1947); Kwong Hai Chew v. Colding, 344 U.S. 590 (1953); Rosenburg v. Fleuti, 374 U.S. 449 (1963). \1210\Under the War Brides Act of 1945, 59 Stat. 659. \1211\Id., 338 U.S., 543. \1212\E.g., Immigration and Naturalization Service v. Errico, 385 U.S. 214 (1966).
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Congress' power to admit aliens under whatever conditions it lays down is exclusive of state regulation. The States ``can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states. State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with this constitutionally derived[[Page 279]]federal power to regulate immigration, and have accordingly been held invalid.''\1213\ This principle, however, has not precluded all state regulations dealing with aliens.\1214\
The power of Congress to legislate with respect to the conduct of alien residents is a concomitant of its power to prescribe the terms and conditions on which they may enter the United States, to establish regulations for sending out of the country such aliens as have entered in violation of law, and to commit the enforcement of such conditions and regulations to executive officers. It is not a power to lay down a special code of conduct for alien residents or to govern their private relations.\1215\ \1213\Takahashi v. Fish & Game Commission, 334 U.S. 410, 419 (1948); De Canas v. Bica, 424 U.S. 351, 358 n. 6 (1976); Toll v. Moreno, 458 U.S. 1, 12-13 (1982). See also Hines v. Davidowitz, 312 U.S. 52, 66 (1941); Graham v. Richardson, 403 U.S. 365, 376-380 (1971). \1214\E.g., Heim v. McCall, 239 U.S. 175 (1915); Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392 (1927); Sugarman v. Dougall, 413 U.S. 634, 646-649 (1973); De Canas v. Bica, 424 U.S. 351 (1976); Cabell v. Chavez-Salido, 454 U.S. 432 (1982). \1215\
Purporting to enforce this distinction, the Court voided a statute, which, in prohibiting the importation of ``any alien woman or girl for the purpose of prostitution,'' provided that whoever should keep for the purpose of prostitution ``any alien woman or girl within three years after she shall have entered the United States'' should be deemed guilty of a felony. Keller v. United States, 213 U.S. 138 (1909).
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Yet Congress is empowered to assert a considerable degree of control over aliens after their admission to the country. By the Alien Registration Act of 1940, Congress provided that all aliens in the United States, fourteen years of age and over, should submit to registration and finger printing and willful failure to comply was made a criminal offense against the United States.\1216\ This Act, taken in conjunction with other laws regulating immigration and naturalization, has constituted a comprehensive and uniform system for the regulation of all aliens.\1217\ \1216\54 Stat. 670, 8 U.S.C. Sec. Sec. 1301-1306. \1217\See Hines v. Davidowitz, 312 U.S. 52, 69-70 (1941).
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An important benefit of this comprehensive regulation accruing to the alien is that it precludes state regulation that may well be more severe and burdensome. For example, in Hines v. Davidowitz,\1218\ the Court voided a Pennsylvania law requiring the annual registration and fingerprinting of aliens but going beyond the subsequently-enacted federal law to require acquisition of an alien identification card that had to be carried at all times and to be exhibited to any police officer upon demand and to other licensing officers upon applications for such things as drivers' licenses.
The Court did not squarely hold the State incapable of having such a law in the absence of federal law but appeared to lean in that[[Page 280]]direction.\1219\ Another decision voided a Pennsylvania law limiting those eligible to welfare assistance to citizens and an Arizona law prescribing a fifteen-year durational residency period before an alien could be eligible for welfare assistance.\1220\ Congress had provided, Justice Blackmun wrote for a unanimous Court, that persons who were likely to become public charges could not be admitted to the United States and that any alien who became a public charge within five years of his admission was to be deported unless he could show that the causes of his economic situation arose after his entry.\1221\
Thus, in effect Congress had declared that lawfully admitted resident aliens who became public charges for causes arising after their entry were entitled to the full and equal benefit of all laws for the security of persons and property, and the States were disabled from denying aliens these benefits.\1222\ \1218\312 U.S. 52 (1941). \1219\Id., 68. But see De Canas v. Bica, 424 U.S. 351 (1976), in which the Court upheld a state law prohibiting an employer from hiring aliens not entitled to lawful residence in the United States.
The Court wrote that States may enact legislation touching upon aliens coexistent with federal laws, under regular preemption standards, unless the nature of the regulated subject matter precludes the conclusion or unless Congress has unmistakably ordained the impermissibility of state law. \1220\Graham v. Richardson, 403 U.S. 365 (1971). See also Sugarman v. Dougall, 413 U.S. 634 (1973); In re Griffiths, 413 U.S. 717 (1973); Cabell v. Chavez-Salido, 454 U.S. 432 (1982). \1221\8 U.S.C. Sec. Sec. 1182(a)(8), 1182(a)(15), 1251(a)(8). \1222\See 42 U.S.C. Sec. 1981, applied in Takahashi v. Fish and Game Commission, 334 U.S. 410, 419 n. 7 (1948).
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Unlike the exclusion proceedings,\1223\ deportation proceedings afford the alien a number of constitutional rights: a right against self-incrimination,\1224\ protection against unreasonable searches and seizures,\1225\ guarantees against ex post facto laws, bills of attainder, and cruel and unusual punishment,\1226\ a right to bail,\1227\ a right to procedural due process,\1228\ a right to counsel,\1229\ a right to notice of charges and hearing,\1230\ as well as a right to cross-examine.\1231\ \1223\
See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950), where the Court noted that ``[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.'' \1224\Kimm v. Rosenberg, 363 U.S. 405
(1960). \1225\Abel v. United States, 362 U.S. 217, 229 (1960). \1226\Marcello v. Bonds, 349 U.S. 302 (1955). \1227\Carlson v. Landon, 342 U.S. 524, 540 (1952). \1228\Wong Yang Sung v. McGrath, 339 U.S. 33, 49 (1950). \1229\8 U.S.C. Sec. 1252(b)(2). \1230\8 U.S.C. Sec. 1252(b)(1). \1231\8 U.S.C. Sec. 1252(b)(3).
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Notwithstanding these guarantees, the Supreme Court has upheld a number of statutory deportation measures as not uncon[[Page 281]]stitutional. The Internal Security Act of 1950, in authorizing the Attorney General to hold in custody, without bail, aliens who are members of the Communist Party of the United States, pending determination as to their deportability, is not unconstitutional.\1232\
Nor was it unconstitutional to deport under the Alien Registration Act of 1940\1233\ a legally resident alien because of membership in the Communist Party, although such membership ended before the enactment of the Act. Such application of the Act did not make it ex post facto, being but an exercise of the power of the United States to treminate its hospitality ad libitum.\1234\ And a statutory provision\1235\ making it a felony for an alien against whom a specified order of deportation is outstanding ``to willfully fail or refuse to make timely application for travel or other documents necessary to his departure'' was not on its face void for ``vagueness.''\1236\ \1232\Carlson v. Landon, 342 U.S. 524 (1952). \1233\54 Stat. 670. For existing statutory provisions as to deportation, see 8 U.S.C. Sec. 1251 et seq. \1234\Carlson v. Landon, 342 U.S. 524 (1952). \1235\8 U.S.C. Sec. 1252(e). \1236\United States v. Spector, 343 U.S. 169 (1952).
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Deportation