Supreme Court

Don't Blame Trump for Obama's Position on Losing Citizenship Over Fibs

A Yale professor illustrates the tendency to frame what should be critiques of government power as complaints about particular politicians.

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White House

Yale philosophy professor Jason Stanley is rightly alarmed by the federal government's position that naturalized Americans can lose their citizenship based on trivial misstatements to the Department of Homeland Security. But Stanley wrongly portrays that position, which was staked out by the Obama administration, as a product of Donald Trump's special hostility to immigrants. The mistake illustrates the sadly familiar tendency to frame what should be critiques of government power as complaints about particular parties or politicians.

Writing in The New York Times, Stanley exaggerates the differences between Trump's immigration policies and those of his predecessor, who was no slouch when it came to "exiling" people (as Stanley describes it). Still, Stanley correctly notes that Trump's immigration enforcement guidelines have expanded the category of "criminals" given priority for deportation to include pretty much anyone living in the United States without the government's permission. Where Stanley goes wrong is by tying that shift to a case the Supreme Court heard last Wednesday:

The administration's hard line on the standard for criminalization has gone so far as to alarm several members of the Supreme Court, as demonstrated during an argument before the Court last week (Maslenjak v. United States), in which a Justice Department lawyer argued that, as The Times reported, "the government may revoke the citizenship of Americans who made even trivial misstatements in their naturalization proceedings," including not disclosing a criminal offense of any kind, even if there was no arrest. To test the severity of that position, Chief Justice John G. Roberts, Jr., confessed to a crime—driving 60 miles an hour in a 55-mile-an-hour zone many years ago without being caught. He then asked if a person who had not disclosed such an incident in his citizenship application could have his citizenship revoked. The lawyer answered, yes. There was "indignation and incredulity" expressed by the members of the Court. Justice Anthony M. Kennedy told the lawyer, "Your argument is demeaning the priceless value of citizenship." Roberts put it simply. If the administration has its way, he said, "the government will have the opportunity to denaturalize anyone they want."

The issue in Maslenjak, as I explained last week, is whether you can "procure" citizenship "contrary to law," an offense that triggers automatic denaturalization as well as up to 25 years in prison, by making a false statement that has no bearing on your application. According to the U.S. Court of Appeals for the 6th Circuit, you can. The Obama administration, in a November 23 brief urging the Supreme Court to let that decision stand by decining to hear an appeal, said the 6th Circuit got it right. The offense of "knowingly procuring naturalization contrary to law," said Acting Solicitor General Ian Heath Gershengorn, "does not require proof of materiality." That means even an irrelevant fib—such as lying about your weight, as the government's lawyer suggested during oral argument—can cost someone her citizenship.

It is hardly surprising that the Obama administration took that position, since the Justice Department made the same argument at trial and before the 6th Circuit. Federal prosecutors tend to prefer legal interpretations that make their job easier, no matter who happens to be sitting in the White House, and government officials, regardless of party, are inclined to read the law in a way that enhances their own authority. Those tendencies are a strong argument for clearer statutes and for erring on the side of giving the government less power to upend people's lives. They are not an argument against Donald Trump per se. Don't we have enough of those?

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  1. This is really a good indication that certain types, no matter how insanely Trumpophobic, will never see an administration from their worst nightmares as a reason to rethink big government.

    As for citizenship, it shouldn’t matter how you came across it. Once an American always an American until you choose to cancel it. Give the bureaucracy this power and they will abuse it eventually and grossly.

  2. If a person lies in an agreement, and I think we can consider a naturalization form to be a type of agreement, then it is a type of fraud, and should be punished.

    If people are concerned that trivial lies like lying about your weight is enough to get someone de-naturalized, then that begs the question, why is the government asking about a person’s weight on a citizenship form?

    And if people are concerned that trivial lies about small crimes are enough to get someone de-naturalized, then maybe that is because there are too many laws in the first place?

    1. To add… by stating that a small fib ought to be overlooked is to ignore principles. If we allow a small fib, then what is small? What is irrelevant and can be ignored after we find the answer lacking? The only way around it is, as you state, to refine our actions to those we explicitly are concerned about. “Have you committed murder?” seems like a good question to ask and can be justified. “Do you eat more pizza than brocholli and are therefore fat?” has no bearing on the issue and shouldn’t be asked in the first place thereby preventing altogether even the opportunity for falsified information that otherwise isn’t germane in the slightest.

    2. The greater the number of laws and enactments, the more thieves and robbers there will be. – Lao-Tzu (604-531 B.C.)

  3. Federal prosecutors tend to prefer legal interpretations that make their job easier, no matter who happens to be sitting in the White House, and government officials, regardless of party, are inclined to read the law in a way that enhances their own authority. Those tendencies are a strong argument for clearer statutes and for erring on the side of giving the government less power to upend people’s lives.

    This X 1,000,000,000.

    Unfortunately Congress is also lazy, and more often than not, on the same side as the bureaucrats as far their desire to expand government authority over people’s lives. So they pass a lot of laws that basically just say “go do good things” and let the executive branch figure out how to implement the law. And then they pat themselves on the back for having “good intentions.” Until Congress grows a pair and starts passing laws that are clearly defined in their goals and execution this shit will just continue and the bureaucracy or “Deep State” will just keep getting bigger and bigger and more intrusive. But that’s never gonna happen because Congress is mostly populated by a bunch of lazy statist asshats. Basically, we’re fucked.

    1. Until SCOTUS starts shooting down laws as being too vague, it’ll never happen. It’s insane that we give so much power to unaccountable drones in the government to determine what the law really is.

      1. Until SCOTUS starts shooting down laws as being too vague…

        Unfortunately SCOTUS is of the same mind as Congress and the bureaucrats. We would need at least 5 justices who are willing to buck the trend of being overly deferential to Congress and the Executive branch. Right now we only have maybe 1 (Gorsuch, at least as far as Chevron deference is concerned). We need 4 more of the old fogeys to either die or retire and then be replaced by Gorsuches. That might take a while (if ever).

  4. Justice Anthony M. Kennedy told the lawyer, “Your argument is demeaning the priceless value of citizenship.”

    How is allowing misstatements/lies on naturalization papers enhancing the value?

    If it is truly priceless and valuable, then people should make sure what they are stating is actually true.

    Allowing anything else is demeaning the value.

    1. Telling an immaterial lie is of somewhat less consequence than revoking citizenship.

      1. Disagree. If citizenship is vital and valuable, then expecting the highest standards for entrance is a small price.

  5. The issue in Maslenjak, as I explained last week, is whether you can “procure” citizenship “contrary to law,” an offense that triggers automatic denaturalization as well as up to 25 years in prison, by making a false statement that has no bearing on your application.

    hard to imagine what the problem here might be.

  6. Just so we’re all clear here ? this case wasn’t about someone who became a naturalized citizen because they lied about their weight on the application. This case was about someone who obtained refugee status which requires showing that you have reason to think you’d be targeted for persecution in your country of origin. The individual in this case was an ethnic Serb who claimed that she and her family were being targeted by other ethnic Serbs because her husband refused to serve in the military when in fact he had served as an officer in the Serbian military in a unit that was responsible for the genocide of 8000 Bosnian Muslims. It would be like if someone came here today from Syria claiming they were being targeted by ISIL and lied about the fact that they were members.

    1. But just like a criminal defendant getting evidence thrown out that shows they are obviously guilty, it’s the broader principle at stake, the fact of guilt or innocence of the individual doesn’t matter so much as the case. Better a guilty man go free etc etc…

    2. Again, the question is more about what is or isn’t “material” to the application. According to the government’s lawyers, *anything* not 100% true, including things as minor as your weight or having driven faster than the speed limit, is sufficient grounds for revocation. They are not arguing the specific case, they are trying to argue the most general case there can be. That’s where the problem really is.

  7. Also, as someone whose wife has gone through this process, the number of forms filled out by the time you get to this point, and the vagueness of some parts of these forms, makes it easy to be sympathetic that a mistake on the application shouldn’t get you thrown out. Numerous times we were looking at each other quizzically “what do you think they mean here, do we put this, or do we put that?”

    including not disclosing a criminal offense of any kind, even if there was no arrest.

    I had a beer when I was 20? I mean c’mon. This reminds me of Alice’s Restaurant. I can imagine a judge:

    “You went 60 in a 55, you copied your favorite CD and gave it to a friend, and you failed to report the six pack your neighbor gave you for mowing their lawn as barter income. You clearly don’t have the moral fiber to join our society. Now excuse me, I need to go acquit a police officer who just committed murder”.

  8. his predecessor, who was no slouch when it came to “exiling” people

    Why is every single writer on this site a lying sack of shit on this issue?

    1. They redefined “deportation” to include simply sending them right back across the border because there was now paperwork to fill out. Previously that had been a separate number. So numbers before Obama and numbers after Obama were counting different things. You can’t compare them directly.

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