Through the course of his presidential run, Ted Cruz's Canadian birth has put the process for receiving U.S. citizenship in the spotlight. Now, the Senate Judiciary Committee will aim to forward a bill this month that the senator introduced that would change how Americans lose their citizenship. The specifics of the bill will shock Americans concerned with civil liberties.
Sen. Cruz's Expatriate Terrorist Act (S. 247) would allow bureaucrats to strip citizenship from U.S. citizens on the dangerously vague grounds of "assistance" to a terrorist group. Americans could lose their citizenship without any trial, conviction, or review by another agency. For Americans abroad, the bureaucrats would even have the ability to deny the right to travel home while a lawsuit is pending in U.S. courts.
Current Process for Expatriation Lacks Strong Due Process
In 1967, the Supreme Court found that Congress cannot take away an American's citizenship unless they voluntarily choose to relinquish their citizenship. The 14th amendment is unequivocal: "All persons born or naturalized in the United States... are citizens of the United States." Congress cannot disagree. In 1980, the Court added that a person's intent to relinquish must be proven, not merely assumed by virtue of voluntarily taking actions deemed by Congress to be "expatriating."
The process for proving intent, however, is less than rigorous. Under 8 U.S.C. §1481, U.S. citizens--natural born or naturalized--can be expatriated if they voluntarily commit a variety of actions with the intent of relinquishing U.S. citizenship. These include naturalizing in, or being employed by, a foreign state, formally renouncing U.S. citizenship, or being convicted of treason, sedition, incitement to rebellion, or other violent acts against the U.S..
For most acts, the State Department regulations assume that you intend to keep your citizenship unless you formally renounce it. Yet if you "serve in the armed forces of a foreign state engaged in hostilities with the United States," "take a policy position in a foreign state," or are convicted of treason, the State Department rejects the assumption. Such cases, the State Department assures us, "will be developed carefully" by U.S. consular officers.
Once the conclusion is made that you intended to give up your citizenship, however, you have little recourse. Under 8 U.S.C. 1501, if a State Department consular officer claims that you have committed such expatriating actions, and the Secretary of State signs off on the claim, that's it: you are no longer a citizen of the United States of America. You can appeal to the decision, but only to the very State Department that just expatriated you-and under its own regulations, it will not reconsider its decision without "substantial new evidence of involuntariness or intent."
At this point, the law gets very complicated. A plain reading of the statute appears to forbid appeals to U.S. courts by Americans abroad. But in 1962, the Supreme Court interpreted the law in such a way as to allow for judicial review under the Administrative Procedures Act (APA). The justices then abrogated this precedent in 1977, deciding the APA no longer grants jurisdiction. In the 1980s, two district courts then construed the law to still allow for appeals outside the country, based on the 1962 decision.
The bottom line is that this area of law is far from settled and extremely complex, so much so that even the 5th Circuit Court of Appeals called the question of review "unclear" in 2010. For a U.S. citizen who has lost his or her citizenship abroad, the difficulty of challenging an expatriation decision would be immense and extremely fraught, especially in the face of a statute that implies they have no right to do so.
Americans in this situation would have no right to attorney. They would be forced to find one in a foreign country. They couldn't flee the foreign country, including one that had become unsafe. There are already examples of Americans in Yemen who have had their passports revoked through bureaucratic fiat. One individual said he was coerced into signing a State Department form that led to his passport being revoked. They are currently suing.
New Bill Will Weaken Expatriation Standards
The only good news in the current process is that the facts at issue--i.e., a formal statement by the individual, a conviction for treason, service in foreign armed services, or a policy position in a foreign state--are at least fairly objective. Sen. Cruz's bill will add to these objective and clearly defined actions a new vague offense: "material assistance" to any foreign terrorist organization (FTO).
Unlike treason or other violent expatriating acts, the bill doesn't require a conviction for this new offense. In fact, "material assistance" is not defined in the bill or in other law, and so it is not even possible to be convicted for it.
Under 8 U.S.C. 2339A, Congress has criminalized providing FTOs "material support"--which may or may not refer to the same actions as "material assistance." If it does, this law is already terrifyingly broad. In 2010, for instance, the Supreme Court found that Humanitarian Law Project violated this provision by simply providing the PKK (the Kurdish Worker's Party) in Turkey--which the U.S. has designated as a FTO--advice on how to "peacefully resolve conflicts."
To understand how this bill could work in practice, consider a somewhat comparable case that went to the Supreme Court last year. A consular officer denied a visa to the wife of a U.S. citizen because of her alleged "terrorist activities." The citizen sued, arguing that his rights to be with his wife and have a marriage with his wife in the U.S. were being denied without due process.
His wife was once a payroll clerk in the Afghan government prior to the U.S. invasion in 2001, but the officer did not cite even this to explain his decision--and the Supreme Court found that he didn't need to: those two words were all the "due process" to which he was entitled. The man's hopeless pursuit of an explanation for the denial could easily preview what might happen to someone targeted under S. 247: a blackhole of bureaucracy.
The U.S. Can Stop Terrorists and Keep Due Process Protections
The goal of the legislation, as stated by its author, is to prevent foreign fighters from returning to the U.S. to commit attacks. But if there is sufficient cause to take away someone's citizenship, there is sufficient cause to revoke their passports, arrest them, try them, and convict them. The bill is completely unnecessary to prevent future attacks.
Sen. Cruz also seems to believe that his bill would cause individuals to automatically lose their citizenship, simply by engaging in the "expatriating acts" listed in the bill. He appears to think that it would not be necessary to prove that the person intended to give up citizenship by taking them--exactly what the Supreme Court has stated is impermissible under the 14th Amendment. But even if this were constitutional, it wouldn't be desirable.
There are many Americans who travel to troubled areas for innocuous reasons--for example, aid workers or U.S.volunteers for the Kurdish forces fighting ISIS (note that these Kurds, who the U.S. is helping, are the Syrian and Iraqi allies of the Kurdish PKK members in Turkey, who the U.S. considers to be terrorists). It is easy to see cases of mistaken identity or confusion over someone's intent in traveling near a war zone. This is why due process is important. Individuals are presumed innocent, and the trial provides a means for discovering the truth.
We should not give more power to bureaucrats to take away all of the rights of Americans with a stroke of the pen. Such a process does not accord with American traditions or basic human rights. Congress should reform the expatriation statutes to require a trial prior to loss of citizenship.
This post was originally published at NiskanenCenter.org