//  6/23/17  //  Quick Reactions

The Fourteenth Amendment proclaims in one breath, “All persons born or naturalized in the United States…are citizens of the United States.”  However, citizenship is tiered in at least one respect: the circumstances under which one might lose it.

Those born in the United States may lose their citizenship only by committing “any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States.”  They may also voluntarily renounce their nationality by pledging allegiance to a foreign state or a political subdivision, or by serving in the armed forces of another country “engaged in hostilities” against the U.S.

Naturalized citizens are on more tenuous ground.  For instance, they may not procure citizenship if they are affiliated with certain organizations—indeed, naturalized citizens may not be Communists.  And one reason why naturalized citizens might lose their citizenship is if, per 18 U. S. C. §1425(a), they procure it by willfully misrepresenting or concealing a material fact.  By the very nature of how they obtained citizenship, those benefiting from jus soli will never face this quagmire.  

In Maslenjak v. United States, the government charged a citizen with knowingly procuring her naturalization in violation of 18 U.S.C. §1425(a), and argued further that the misrepresentation in question need not be material to the basis for naturalization.  The Sixth Circuit affirmed the government’s position, and the Supreme Court took cert.  While querying the government on whether a misrepresentation must be material to qualify under §1425(a), Chief Justice Roberts asked at argument whether a naturalized citizen should lose citizenship after twenty years for not disclosing having once exceeded the speed limit.  In response, the Assistant to the Solicitor General maintained that would be the government’s view.

Yesterday, the Supreme Court unanimously blocked the government’s efforts to lower the bar for stripping naturalized citizens of their citizenship.  In a decision issued by Justice Kagan—with a concurrence in the judgment by Justice Gorsuch joined by Justice Thomas, and another by Justice Alito—the Court held that to secure a conviction under §1425(a), “the illegal act must have somehow contributed to the obtaining of citizenship.”  Justice Kagan wrote further:

On the Government’s theory, some legal violations that do not justify denying citizenship [including, for instance, willful misrepresentations made for reasons such as embarrassment, fear or a desire for privacy] would nonetheless justify revoking it later….The Government could thus take away on one day what it was required to give the day before.  And by so wholly unmooring the revocation of citizen- ship from its award, the Government opens the door to a world of disquieting consequences[,] give[s] prosecutors nearly limitless leverage—and afford[s] newly naturalized Americans precious little security.

The push by the government to make it easier to revoke citizenship from whose who were once noncitizens—even several years after they obtained their citizenship and despite their ostensible parity to U.S.-born citizens—was not among the higher-profile actions the executive branch has taken to roll back protections in the immigration context.  Nonetheless, had the government’s view prevailed, it would have furthered the current administration’s interest in reinforcing the hierarchy between immigrants and “real” Americans.  Fortunately, it did not.  


Expedited Removals, Jeopardized Due Process

8/26/19  //  Commentary

The Trump administration’s revamped expedited removal system unsettles the rulings that upheld the expedited removal system against constitutional challenges.

Kyle Skinner

Harvard Law School

Leah Litman

Michigan Law School

The Solicitor General’s Expedited Removal Petition

8/19/19  //  Commentary

Intervening legal developments counsel against granting the Solicitor General’s recent petition for certiorari on the expedited removal system.

Leah Litman

Michigan Law School

Kyle Skinner

Harvard Law School

The Long-Term Costs of Trump’s Racism

8/6/19  //  Commentary

Trump’s racism will have lasting consequences on our legal and political culture.

Kyle Skinner

Harvard Law School

Leah Litman

Michigan Law School