General Discussion

For good reasons, it is difficult to denaturalize a U.S. citizen and even harder to expatriate one. As this week’s “Long Read” documents, Congress has provided for only a handful of circumstances in which the executive branch is empowered to pursue such a move; and the Supreme Court has recognized meaningful constitutional limits (and an entitlement to meaningful judicial review) even in those cases. As we’re seeing so often with the current administration, there may well be a legal avenue for at least some of what it appears to want to accomplish, but that legal avenue has too much, you know, law, interposing both substantive limits and procedural requirements between the President and his policy preferences......

Historically, and for good reasons, it has been exceptionally difficult for the government to involuntarily revoke an American’s citizenship. 8 U.S.C. § 1481 identifies seven classes of activities that can subject citizens to a loss of citizenship:

(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or

(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or

(3) entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer; or

(4)(A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state; or (B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required; or

(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or

(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense; or

(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.

As should be clear from this list, most of the circumstances involve behavior in which an individual has manifested a specific and voluntary desire to surrender their citizenship—and not when citizenship has been revoked as a punishment. And even for subsection (a)(7), the one part that doesn’t seem to require that on its face, the statute today includes an umbrella condition—that loss of citizenship depends upon whether the individual “voluntarily perform[ed] any of the [specified] acts with the intention of relinquishing United States nationality.”......

Section 1481 applies to all U.S. citizens. For naturalized citizens (i.e., those who become citizens after birth), there’s one additional basis for revoking citizenship—and that’s if and only if their citizenship was “illegally procured or . . . procured by concealment of a material fact or by willful misrepresentation.” Here, too, the statute (and, almost certainly, the Constitution) requires notice and meaningful judicial review before an American’s citizenship can be stripped. As 8 U.S.C. § 1451(b) mandates,

The party to whom was granted the naturalization alleged to have been illegally procured or procured by concealment of a material fact or by willful misrepresentation shall, in any such proceedings under subsection (a) of this section, have sixty days’ personal notice, unless waived by such party, in which to make answers to the petition of the United States . . . .

Of course, the government can pursue denaturalization on broader grounds than it can pursue expatriation—since the Constitution doesn’t create a substantive right to naturalization in the same way it does for birthright citizenship. But the key is that here, too, the Supreme Court has regularly insisted not only on meaningful judicial review of denaturalization proceedings, but on construing the relevant statutes narrowly—including, most recently, in 2017. (For much more on the complexities of denaturalization, see this fantastic February 2020 “Practice Advisory” from the National Lawyers Guild and the Immigrant Legal Resource Center.)

In other words, although denaturalization is potentially available in more cases than expatriation, it still requires meaningful, individualized judicial review—review that holds the government to a significant burden in providing that an individual wrongfully obtained their citizenship, and not just that they engaged in questionable behavior thereafter. There is, simply, no easy, fast path to revoking any American’s citizenship without their consent—and there hasn’t been for decades. That may not stop the current administration from trying it anyway, or from removing citizens unlawfully and then resisting the legal consequences. But it’s important to be clear on what the actual legal authority for such maneuvers would be. Here, there isn’t any.