Every few months, the Trump administration says that it will make a greater effort to denaturalize American citizens. Last week, The New York Times reported that the Justice Department plans to start the process for formally denaturalizing more than 300 current U.S. citizens, which would be the largest single push for citizenship stripping in modern American history.
Any attack on the integrity of American citizenship is concerning. The administration’s denaturalization threats often provoke a strong response from the president’s opponents and critics. But it is also important to calibrate one’s level of concern by understanding what the Trump administration can and can’t do about denaturalization in the first place.
For one thing, the Trump administration cannot denaturalize a natural-born citizen—that is, someone who acquired citizenship at birth by virtue of being born on U.S. soil or by being born to a U.S. citizen. The Fourteenth Amendment’s citizenship clause, which was enacted during Reconstruction in 1869, sought to place the scope of American citizenship beyond the limits of normal political debate for all time. (I’ll come back to this to discuss Trump’s recent attacks on birthright citizenship later.)
Second, there are strict legal and constitutional limits on when and how the United States can denaturalize a naturalized U.S. citizen. This was not always the case. During the first Red Scare in the late 1910s, for example, the Wilson administration targeted Russian American anarchist activist Emma Goldman for her antiwar and anti-conscription efforts. Federal officials invalidated her husband’s naturalized citizenship for alleged fraud, then argued that her acquisition of citizenship through marriage to him was now invalid as well. She accepted deportation to the newly founded Soviet Union in 1919.
In the late 1930s, Congress and the Franklin D. Roosevelt administration sought to clarify when and how someone could lose their U.S. citizenship. The Nationality Act of 1940 was drafted to harmonize dozens of different provisions that had been enacted piecemeal over the preceding decades. In the new law, Congress laid out a variety of circumstances in which a U.S. citizen could be deemed to have renounced their U.S. citizenship. The Supreme Court later summarized those conditions as follows:
The chapter relating to “Loss of Nationality” provided that any citizen should “lose his nationality” by becoming naturalized in a foreign country; taking an oath of allegiance to a foreign state; entering or serving in the armed forces of a foreign state; being employed by a foreign government in a post for which only nationals of that country are eligible; voting in a foreign political election or plebiscite; using a passport of a foreign state as a national thereof; formally renouncing American citizenship before a consular officer abroad; deserting the armed forces of the United States in wartime (upon conviction by court martial); if a naturalized citizen, residing in the state of his former nationality or birth for two years if he thereby acquires the nationality of that state; or, if a naturalized citizen, residing in the state of his former nationality or birth for three years.
The most important provision, at least for constitutional law purposes, was the restriction on voting in foreign elections. The Supreme Court initially upheld it in the 1958 case Perez v. Brownell. That case centered on Clemente Martinez Perez, a Texas-born man who had fled to Mexico to avoid registering for the draft during World War II. He then sought to evade the consequences by reentering the United States multiple times on agricultural visas, claiming to be a natural-born Mexican citizen.
When the U.S. sought to deport Perez to Mexico in the early 1950s, he invoked his natural-born U.S. citizenship to try to remain in the country. A federal district court ruled that Perez had forfeited his U.S. citizenship by voting in a Mexican election, and the Supreme Court agreed on appeal. The justices concluded that Congress’s powers to regulate U.S. foreign relations included the power to revoke citizenship for U.S. citizens who voted overseas.
Justice Felix Frankfurter’s opinion for the court blandly took the government’s assertions at face value. “Experience amply attests that, in this day of extensive international travel, rapid communication and widespread use of propaganda, the activities of the citizens of one nation when in another country can easily cause serious embarrassments to the government of their own country as well as to their fellow citizens,” he wrote.
It is impossible to reconcile the citizenship clause’s absolutist text—and its lack of a mechanism for depriving someone of U.S. citizenship—with the Perez decision’s reliance on “experience” or its focus on whether a U.S. citizen’s activities cause “serious embarrassments to the government.” Chief Justice Earl Warren, writing in dissent from Perez, laid out the fundamental importance of American citizenship in plain, civic-republican terms.
Citizenship is man’s basic right, for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen. He has no lawful claim to protection from any nation, and no nation may assert rights on his behalf. His very existence is at the sufferance of the state within whose borders he happens to be. In this country, the expatriate would presumably enjoy, at most, only the limited rights and privileges of aliens, and, like the alien, he might even be subject to deportation, and thereby deprived of the right to assert any rights. This government was not established with power to decree this fate.
The Supreme Court corrected its error and embraced Warren’s reasoning in the 1967 case Afroyim v. Rusk. Beys Afroyim, a Polish-born man who had been a U.S. citizen since 1926, traveled to Israel in 1950 and voted in its Knesset elections in 1951. Roughly a decade later, in 1960, Afroyim submitted an application to renew his U.S. passport. The State Department refused his renewal request on the grounds that he had forfeited his U.S. citizenship by voting in an Israeli election.
In response, Afroyim filed a lawsuit against the State Department. He argued that the refusal both violated his due-process rights and ran contrary to the Fourteenth Amendment’s citizenship clause. He had a much more receptive audience at the Supreme Court than Perez did. Justice Hugo Black, writing for the court in Afroyim, noted that Perez “has been a source of controversy and confusion ever since” it was decided. Since then, he explained, the Supreme Court had “consistently invalidated on a case-by-case basis various other statutory sections providing for involuntary expatriation” and also “refused to hold that citizens can be expatriated without their voluntary renunciation of citizenship.”
In Afroyim, the Supreme Court finally overturned Perez and imposed clear limits on denaturalization. “This power cannot, as Perez indicated, be sustained as an implied attribute of sovereignty possessed by all nations,” Black concluded. “Other nations are governed by their own constitutions, if any, and we can draw no support from theirs. In our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship.”
Afroyim was one of the Warren court’s most quietly influential decisions. By ruling that Congress could not involuntarily deprive U.S. citizenship, the court essentially held that it is impossible to lose U.S. citizenship unless you take multiple concrete steps to do so at a U.S. embassy. Roughly 5,000 people do this every year, with a slight uptick in the Trump era. It also ended an era where the government often sought to punish dissidents and political activists with the loss of citizenship and eventual deportation.
As a result of the court’s ruling, the only lawful way to be deprived of U.S. citizenship is if you are found to have lied during the naturalization process. Something that is obtained through fraud, Congress has declared and the courts have held, is not legitimately obtained at all. Logically, this also rules out the loss of U.S. citizenship for natural-born citizens. The Trump administration’s denaturalization efforts fall into this category.
The Times reported last week that the Trump administration identified and hopes to denaturalize 384 current U.S. citizens. This number requires context in two ways. On one hand, it would represent a significant jump in denaturalizations. The federal government only pursued an average of 11 denaturalization cases each year from 1990 to 2017, the year Trump took office. On the other, it would be a drop in the bucket of total naturalizations. Roughly 7.9 million immigrants obtained U.S. citizenship over the last decade, according to U.S. immigration officials.
Suffice it to say, it is extremely unlikely that there is some great, hidden number of fraudulent naturalizations waiting to be uncovered by the Trump administration. Obtaining U.S. citizenship is often an exhausting, decade-long process that requires a whirlwind of interviews, tests, applications, and so on. The reality is that very few people lie or defraud the government during the denaturalization process. An Obama-era review that cross-checked fingerprint records from past deportations and those of newly minted U.S. citizens found fewer than one thousand matches out of tens of millions of naturalizations over the past few decades.
The Trump administration also cannot denaturalize someone by fiat. There are plenty of areas of federal immigration law where the executive branch can wield arbitrary and unchecked power, but denaturalization is not one of them. The Justice Department must charge a defendant with “knowingly procur[ing], contrary to law, [their] naturalization” and obtain a conviction before a federal jury. Only when convicted by a jury can a defendant be denaturalized. As I’ve noted before, juries have been a potent check on the Trump administration’s misconduct.
Sometimes the Trump administration does dubiously legal things in the hope of shifting the law by obtaining a favorable ruling from the Supreme Court. But the Supreme Court has already signaled to Trump that it is uninterested in making it easier to denaturalize someone. In the 2017 case Maslenjak v. United States, the government convicted a Serbian-born woman of lying to immigration officials about her husband’s role in the Yugoslav wars in the 1990s in general and, more specifically, the Srebrenica massacre.
Federal prosecutors had argued that they only needed to prove that the defendant made a false statement in the course of their naturalization process, regardless of whether it was relevant to the outcome. Justice Elena Kagan, writing for the unanimous court, instead held that the government “must establish that an illegal act by the defendant played some role in her acquisition of citizenship.” It was not enough to merely lie, she explained; the government must prove that the defendant “lied about facts that would have mattered to an immigration official, because they would have justified denying naturalization or would predictably have led to other facts warranting that result.”
That decision matters in two ways. First, it prevents federal prosecutors from using frivolous falsehoods or inaccuracies to deprive someone of their citizenship. Chief Justice John Roberts feared during oral arguments that a defendant who forgot to mention a speeding ticket could later be subject to denaturalization for having done so. That may have seemed an absurd scenario at the time, but could be more plausible amid the Trump administration’s all-out war on the nation’s legal immigration system. Second, it signaled, amid the backdrop of Trump’s first ascent to power and his unprecedented (at the time) attacks on immigration, that the Supreme Court would not reflexively widen the government’s existing denaturalization powers.
This brings us back to the great caveat I mentioned earlier: the future of birthright citizenship. The Supreme Court is currently weighing an executive order issued by Trump on Inauguration Day last year that purports to deny U.S. citizenship to anyone born on U.S. soil to undocumented immigrants or temporary visa holders. It represents the greatest attack on U.S. citizenship’s integrity since the high court’s disastrous ruling in Dred Scott.
The executive order is plainly forbidden by the Fourteenth Amendment’s citizenship clause and more than a century or precedent and practice. A medley of right-wing legal scholars have spent the last year constructing a nonsensical theory to reinterpret that clause. But at oral arguments in Trump v. Barbara, a majority of Supreme Court justices appeared somewhere between skeptical of or hostile to these efforts. A final ruling is expected sometime before the court’s summer recess at the beginning of July.
If the court were to weaken birthright citizenship in any way, even as some sort of internal compromise to reject Trump’s executive order, it would fundamentally alter this entire legal and constitutional calculus. Just as the court’s ruling in Maslenjak signaled an unwillingness to expand denaturalization, so too would a ruling in Barbara be taken as a willingness to further narrow the scope of U.S. citizenship. If the Supreme Court stands its ground, then the Trump administration’s denaturalization campaign will remain firmly constrained by law and precedent, as well.
