Article 1, Section 8, Clause 4 — Judicial Limits On Congresss Expatriation Power

prev | next

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; . . .

In a series of cases decided in the 1950s and 1960s, the Supreme Court established some constraints upon Congress’s expatriation power.[1](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-4/judicial-limits-on-congresss-expatriation-power#fn1art1 " See Afroyim v. Rusk, 387 U.S. 253, 255 (1967) ( “[I]n the other cases decided with and since Perez, this Court has consistently invalidated on a case-by-case basis various statutory sections providing for involuntary expatriation.” ). ") As for the standard of proof to establish expatriation, the Supreme Court in the 1958 case of Nishikawa v. Dulles held that the standard adopted in Schneiderman v. United States for denaturalization applied to expatriation cases.[2](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-4/judicial-limits-on-congresss-expatriation-power#fn2art1 " Nishikawa v. Dulles, 356 U.S. 129, 134–35 (1958), superseded by statute, 8 U.S.C. § 1481(b). ") Under this standard, the government has the burden of proving by “clear, convincing and unequivocal evidence” that a U.S. citizen voluntarily performed one of the statutorily enumerated acts that results in loss of citizenship.[3](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-4/judicial-limits-on-congresss-expatriation-power#fn3art1 " Id. at 135–37, 137; see also Schneiderman v. United States, 320 U.S. 118, 122 (1943) (declaring that the right of citizenship “should not be taken away without the clearest sort of justification and proof” ). The Court reasoned that, given the “drastic” consequences of depriving someone of his or her citizenship, the government should have the burden of proving voluntariness, which the Court described as “the essential ingredient of expatriation.” Nishikawa, 356 U.S. at 134–35, 137. However, if voluntariness is not at issue, “the Government makes its case simply by proving the objective expatriating act.” Id. at 136. ") Applying this standard, the Court held that the government failed to prove that a dual U.S.-Japanese citizen, Nishikawa, lost his U.S. citizenship by serving in the Japanese military during World War II because, according to his testimony, he had been drafted into the Japanese military under the country’s penal conscription law while visiting Japan.[4](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-4/judicial-limits-on-congresss-expatriation-power#fn4art1 " Nishikawa, 356 U.S. at 136–37. ")

Apart from setting the standard of proof for expatriation, the Supreme Court has struck down certain expatriation provisions as unconstitutional. In Trop v. Dulles, decided the same day as Nishikawa, the Court held that the statutory provision revoking citizenship of U.S. citizens convicted by general court martial of desertion was unconstitutional because it exceeded Congress’s war power.[5](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-4/judicial-limits-on-congresss-expatriation-power#fn5art1 " 356 U.S. 86, 92–93 (1958). ") The Court reasoned that “[d]esertion in wartime, though it may merit the ultimate penalty, does not necessarily signify allegiance to a foreign state.” [6](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-4/judicial-limits-on-congresss-expatriation-power#fn6art1 " Id. at 92. ") The Court declared that “[c]itizenship is not a license that expires upon misbehavior,” and concluded that “[a]s long as a person does not voluntarily renounce or abandon his citizenship, . . . his fundamental right of citizenship is secure.” [7](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-4/judicial-limits-on-congresss-expatriation-power#fn7art1 " Id. at 92–93; see also id. at 92 ( “The right may be voluntarily relinquished or abandoned either by express language or by language and conduct that show a renunciation of citizenship.” ). ")

In the alternative, the Court held that revoking citizenship as punishment for a crime violates the Eighth Amendment ’s prohibition against “cruel and unusual” punishment because it causes “the total destruction of the individual’s status in organized society.” [8](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-4/judicial-limits-on-congresss-expatriation-power#fn8art1 " Id. at 99, 101–02. The Court rejected the government’s contention that the statute authorizing expatriation based on military desertion was regulatory, rather than penal, in nature, concluding that “[t]he purpose of taking away citizenship from a convicted deserter is simply to punish him. There is no other legitimate purpose that the statute could serve.” Id. at 97. ") For instance, the Court explained, the individual would become stateless, “a condition deplored in the international community of democracies,” and subject only to the limited and potentially temporary protections available in the country where he happens to reside.[9](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-4/judicial-limits-on-congresss-expatriation-power#fn9art1 " Id. at 101–02. ") Furthermore, although the crime of desertion was punishable by death under criminal statutes, “the existence of the death penalty is not a license to the Government to devise any punishment short of death within the limit of its imagination.” [10](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-4/judicial-limits-on-congresss-expatriation-power#fn10art1 " Id. at 99. ")

In the 1963 case of Kennedy v. Mendoza-Martinez, the Supreme Court struck down the statutory provision that divested citizenship for leaving or remaining outside the United States at a time of war or national emergency to evade military service.[11](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-4/judicial-limits-on-congresss-expatriation-power#fn11art1 " 372 U.S. 144, 165–66 (1963). ") As in Trop, the Court construed the Immigration and Nationality Act (INA) provision as punitive because it strictly imposed penalties on those who engaged in specified conduct.[12](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-4/judicial-limits-on-congresss-expatriation-power#fn12art1 " Id. at 180–84. ") The Court held that the provision violated the Fifth and Sixth Amendment s because it exacted a punishment (loss of citizenship) without providing any procedural safeguards, such as notice, the right to trial, the right to counsel, and the right to present witnesses.[13](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-4/judicial-limits-on-congresss-expatriation-power#fn13art1 " Id. at 166–67. ")

The term after it decided Mendoza-Martinez, the Supreme Court in Schneider v. Rusk considered the constitutionality of the INA’s expatriation provision for naturalized U.S. citizens who maintained a continuous residence in their native country for three years.[14](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-4/judicial-limits-on-congresss-expatriation-power#fn14art1 " 377 U.S. 163 (1964). ") The case involved a German national, Angelika Schneider, who had derived U.S. citizenship through her mother when she was a child, but later resided in Germany following her marriage to a German national.[15](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-4/judicial-limits-on-congresss-expatriation-power#fn15art1 " Id. at 164. ") Eventually, the State Department denied Schneider a passport on the ground that she lost her citizenship by maintaining a continuous residence in Germany, her native country, for at least three years.[16](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-4/judicial-limits-on-congresss-expatriation-power#fn16art1 " Id. ")

Because “the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive,” the Supreme Court held that the INA’s expatriation provision violated due process by unjustifiably discriminating between naturalized U.S. citizens and native-born U.S. citizens, who were not subject to the INA’s foreign residence restriction.[17](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-4/judicial-limits-on-congresss-expatriation-power#fn17art1 " Id. at 165, 168–69. ") The Court reasoned that, although Congress has the power to set forth the various requirements for naturalization, “[t]he constitution does not authorize Congress to enlarge or abridge those rights” that are equally conferred upon both naturalized and native-born U.S. citizens.[18](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-4/judicial-limits-on-congresss-expatriation-power#fn18art1 " Id. at 166. The Court rejected the government’s contention that the expatriation provision reasonably advanced concerns that a naturalized citizen’s prolonged residence in his or her native country would call into question allegiance to the United States and reliability as a U.S. citizen. Id. at 165, 168. Noting that native-born citizens may reside abroad indefinitely without losing their citizenship, the Court determined that “[l]iving 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.” Id. at 168–69. In fact, the Court observed, residing abroad “may indeed be compelled by family, business, or other legitimate reasons.” Id. at 169. Accordingly, the Court held that the foreign residence restriction significantly impeded a naturalized U.S. citizen’s ability “to live and work abroad in a way that other citizens may,” and essentially created “a second-class citizenship.” Id. at 168–69. ")

During this period, the Supreme Court also considered the constitutionality of removing citizenship from those who voted in a foreign political election. In its 1958 decision in Perez v. Brownell, the Supreme Court had initially ruled that Congress’s inherent authority to regulate foreign affairs enabled it to make voting in foreign elections an act of expatriation resulting in loss of U.S. citizenship.[19](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-4/judicial-limits-on-congresss-expatriation-power#fn19art1 " 356 U.S. 44, 59–62 (1958), overruled by Afroyim v. Rusk, 387 U.S. 253 (1967). ") A few years later in Afroyim v. Rusk, however, the Supreme Court in 1967 reexamined this issue and reached a different conclusion.[20](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-4/judicial-limits-on-congresss-expatriation-power#fn20art1 " 387 U.S. 253 (1967). ") Afroyim involved a naturalized U.S. citizen, Beys Afroyim, who voted in an Israeli election and was denied the opportunity to renew h