Expatriation

 Expatriation is the voluntary relinquishment of nationality and allegiance. In this context, nationality is more or less synonymous with citizenship, and allegiance means the multifaceted bond joining citizen and state. Not surprisingly for a country born in rebellion, the United States has always recognized a right of allegiance transfer on the part of those becoming Americans. However, it was not until after passage of the Fourteenth Amendment that Congress first acknowledged the right of Americans to forsake U.S. citizenship.

Thereafter, the critical question became whether the government might unilaterally strip nationality, as a punishment or otherwise. Beginning with the act of March 3, 1865, Congress asserted authority to treat certain actions (desertion and draft evasion) as evidence of an American’s intent to abandon U.S. allegiance. In the Expatriation Act of 1907, Congress made loss of American nationality the automatic consequence of either naturalization elsewhere or a pledge of foreign allegiance. In the same statute, Congress declared that whenever a naturalized American returned to his or her homeland and resided there for two years it proved an intent to abandon U.S. nationality, and that any American woman forfeited her nationality by marrying a foreigner. Shortly thereafter, a native Californian who had married a British subject permanently residing in California was refused registration as a California voter on the grounds that she was no longer a U.S. citizen. Her appeal of that judgment failed when the U.S. Supreme Court in Mackenzie v. Hare (1915) accepted that Congress could make marriage to a foreigner an irrefutable presumption of the bride’s expatriating intent. Congress repealed the provision for denationalization by marriage in 1922, but in the Nationality Act of 1940, added to the list of acts evidencing expatriation voting in a foreign election, service in the armed forces or government of a foreign power, and treason against the United States. Then, in the Expatriation Act of 1954, Congress added attempting by force to overthrow the government of the United States, advocating such an attempt, and participating in a seditious conspiracy. Four years later, in Perez v. Brownell (1958), the Supreme Court upheld the denationalization of a native Texan who had admitted sojourning in Mexico to avoid military service, and, while there, voting in political elections. That he denied any intention of renouncing his American nationality was immaterial. By the mid-twentieth century, therefore, Congress was confident that the Constitution allowed it to unilaterally denationalize, and the Supreme Court agreed.

But the Court soon changed its mind, declaring in Trop v. Dulles (1958) that, even if Congress had the power to denationalize, it could not do so as a sanction for wartime desertion without violating the Eighth Amendment’s prohibition of cruel and unusual punishments. A decade later, in Afroyim v. Rusk (1967), the Court held unconstitutional the government’s refusal to renew a naturalized American’s U.S. passport because he had voted in an Israeli election. Overruling Perez, the Court struck down the relevant section of the Nationality Act on the grounds that for all those ‘‘born or naturalized in the United States,’’ nationality is conferred by the Constitution itself and cannot be revoked by ordinary legislation. In 1980, the Court ruled in Vance v. Terranzas (1980) that, to establish expatriation, the government had to prove

by a preponderance of the evidence that an American specifically intended to forsake U.S. nationality. Under the Constitution today, therefore, expatriation is the only lawful form of denationalization, and an American’s intention in this regard cannot be established simply by the drawing by Congress of an inference from an act, however incompatible Congress might find that act with continued allegiance.

Only those born in the United States and those, who having first immigrated to the United States have completed the process of naturalization, are citizens in the constitutional sense of Afroyim and Terranzas. Children born abroad to American citizens, for example, enjoy American nationality not as a constitutional right but as the consequence of an act of Congress. Whether such ‘‘statutory’’ Americans are also constitutionally protected from involuntary denationalization remains an open question.

JOHN PAUL JONES

References and Further Reading

  • Aleinikoff, T. Alexander, Theories of Loss of Citizenship, University of Michigan Law Review 84 (1986): 1471.
  • Boudin, Leonard B., Involuntary Loss of American Nationality, Harvard Law Review 73 (1960): 1510.
  • Gordon, Charles, The Citizen and the State: Power of Congress to Expatriate American Citizens, Georgetown Law Journal 53 (1965): 315.
  • Jones, J.P., Limiting Congressional Denationalization after Afroyim, University of San Diego Law Review 17 (1979): 121.
  • Roche, John. P., The Loss of American Citizenship—The Development of Statutory Expatriation, University of Pennsylvania Law Review 99 (1950): 25.
  • U.S. Department of Justice, Office of Legal Counsel. Survey of the Law of Expatriation (June 12, 2002). http://www. usdoj.gov/olc/expatriation.htm.

Cases and Statutes Cited

  • Afroyim v. Rusk, 387 U.S. 253 (1967)
  • Mackenzie v. Hare, 239 U.S. 299 (1915)
  • Perez v. Brownell, 356 U.S. 44 (1958)
  • Trop v. Dulles, 356 U.S. 66 (1958)
  • Vance v. Terranzas, 444 U.S. 252 (1980)

See also Citizenship

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