Peter Spiro on Lieberman’s Citizenship-Stripping Legislation

I am not an expert on the law of citizenship in the United States, but my Opinio Juris co-blogger Peter Spiro is.  Over at OJ he has a short doctrinal analysis of the case law that would likely be relevant to Joe Lieberman’s citizenship-stripping proposal.  It seems to me analytically sound, although I do not hold myself out as an expert in this:

Joe Lieberman has just rolled out a bill (text here) which would strip individuals associated with foreign terrorist groups of their US citizenship.

He’s been playing this as if it were a minor statutory fix.  It’s true, as he’s been stressing, that current law terminates citizenship for “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 serves as a commissioned or non-commissioned officer.”  8 U.S.C. 1481.  But that applies only where such service is undertaken “with the intention of relinquishing United States nationality.”

That’s not just some statutory nicety.  The Supreme Court has found it a constitutional necessity. Afroyim v. Rusk (1967) is the lead case, in which the Court found unconstitutional expatriation for the act of voting in a foreign political election.  In Vance v. Terrazas (1968), the Court found that

“we are confident that it would be inconsistent with Afroyim to treat the expatriating acts specified in § 1481(a) as the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen. “Of course,” any of the specified acts “may be highly persuasive evidence in the particular case of a purpose to abandon citizenship.”  But the trier of fact must in the end conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship.”

Now, these rulings do allow the government to terminate citizenship on the basis of conduct alone, without a formal renunciation before a consular officer, so long as that conduct reflects a specific intent to relinquish citizenship.  It was (consistent with Terrazas) long presumed that naturalization in another state reflected a desire on the part of individual to shed his US citizenship.  That’s no longer the case.  As a matter of administrative practice, the State Department since the 1990 has presumed individuals intend to retain their citizenship except where they expressly renounce before a US consular official.  This is true even if the oath of naturalization in another country includes an express renunciation of US citizenship.  Service in a foreign military?  Not a problem, Lieberman’s implication to the contrary.

So Lieberman’s proposal could reverse that practice, and the State Department would once again have to contend with with Terrazas.  Intent to relinquish would be pretty hard to establish, Shahzad’s case included.

I agree, by the way, with Glenn Reynolds’ brief comment:

I think this is a terrible idea. As I’ve said before, we need a bright-line distinction between citizens and noncitizens to reduce the temptation of political abuse. This blurs that distinction, which is a bad thing.