"Litigating Citizenship" in Print in Vanderbilt Law Review

On due process and citizenship litigation

|The Volokh Conspiracy |

My coauthor Cassandra Robertson and I have a new article out in the Vanderbilt Law Review entitled "Litigating Citizenship", in which we continue our exploration of legal issues surrounding the loss of citizenship rights. Here is the abstract:

By what standard of proof — and by what procedures — can the U.S. government challenge citizenship status? That question has taken on greater urgency in recent years. News reports discuss cases of individuals whose passports were suddenly denied, even after the government had previously recognized their citizenship for years or even decades. The government has also stepped up efforts to re-evaluate the naturalization files of other citizens and has asked for funding to litigate more than a thousand denaturalization cases. Likewise, citizens have gotten swept up in immigration enforcement actions, and thousands of citizens have been erroneously detained or removed from the United States. Most scholarly treatment of citizenship rights has focused on the substantive protection of those rights. But the procedures by which citizenship cases are litigated are just as important — and sometimes more important — to ensure that citizenship rights are safe.

This Article analyzes the due-process implications of citizenship litigation in the United States. It examines different stages at which the citizenship question is judicially resolved, including denaturalization, removal and exclusion, and restrictions on the exercise of citizenship rights such as voting, working, and traveling. The Article concludes that the structure of U.S. democracy relies on the stability of citizenship and requires heightened procedural protections when the government challenges an individual's citizenship. In the words of Justice Felix Frankfurter, "The history of liberty has largely been the history of observance of procedural safeguards." Those procedural safeguards are needed to ensure that the judicial branch can remain the stalwart protector of a key pillar of our constitutional democracy.

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  1. Expelling Ethel Rosenberg with her two kids to the Soviet Union (naturally stripping her of US citizenship) would have been a more humane punishment than executing her.

    1. Deportation to Israel would have been more appropriate. Israel is America’s greatest ally and would never steal military secrets or use the goyim to police Arab states.

      1. Hey a new anti-Semitic troll! Or is that you, RestoreWesternHegemony?

        1. Why aren’t you busy dying is Iran? Also, I love Israel and the Netanyahu family. Yair’s meme shitposting is really funny!

        2. Oh, I can tell, it’s a different guy. RWH was serious in his opinions if not always particular about the details. This dude is trolling, and at least funny(ish).

          1. He’s persistent, I’ll give him that.

  2. Citizenship questions naturally require you to have a theory of what the country is. You cannot the former without the latter. Are you a blood and soil country or are you an “idea”. If you are blood and soil, that is what it is, but if you claim to be an idea based citizenry, you must pick the acceptable ideas allowed to be held by citizens. Either ISIS joining is part of being American or British or its not.

    I think the First Amendment prohibits America as an “idea”, so the other option is we are a nation of founders and their progeny, whence the 14th Amendment.

    1. We must secure the existence of our people and a future for Ashkenazim children. Hail Herzl! Hail Trump! Hail Victory!

  3. In 1789, it was understood that America was a Christian country — so much so that there was no need to explicitly state it, as Jefferson had in the Declaration of Independence.

    1. Understood by whom? And how was it understood? That the nation is majority or culturally Christian? That the state religion is Christianity? That although there is not an official state church there is a government preference for Christianity? That non-Christians are not citizens? Unwelcome? Deportable? Did that understanding suddenly change seven years when the Treaty of Tripoli was signed and ratified? Does the sect matter? Is it a Protestant Christian nation? Are Anabaptists included or excluded? What about Catholics?

      1. Dr. Ed is, as so often, off-base. His idea of what was understood and didn’t need to be said doesn’t fit with the Treaty of Tripoli, Article 11 (1796):

        “As the Government of the United States of America is not, in any sense, founded on the Christian religion;”

        It was unanimously ratified by the Senate. There was very little contemporaneous dissent. The animating idea of the United States has, as LawTalkingGuy correctly argues, was freedom of religion, not freedom to be a Christian. The Founding generation was fully onboard with this.

    2. When the founders said “We the People”, they were referring to everyone, including Jews, Muslims, Africans, homosexuals, binary trans-genders, and non-Newtonian trans-genders. Sorry bigot, but America doesn’t belong to you.

    3. That’s pretty clearly not true about the Founders.
      Where do you get this stuff?
      Do you have a fetish for being owned so often by so many people on this blog?

      1. The Foundering Fathers were not typical Americans. Some were Deists who likely denied the divinity of Jesus. How many ordinary Americans did?

        The most common book was the Bible. People went to church.

        Who founded America in truth? The Foundering Fathers or the People?

        1. The Stone Masons? The Illuminati? The Learned Elders of Zion? Ancient Aliens? The Lost Tribe of Israel (according to Mormons)?

        2. For what we’re talking about here – the structure of the American experiment – it’s the Founders.

          As is often the case, I can’t quite tell what Ed is getting at, but he’s wrong about the Declaration, and originalist argument for a theocracy is one of the sillier bits of nonsense floating around out there.

          1. Correct. The only theocracy America should support is Israel, and maybe Saudi Arabia too.

            1. Hehe. I like the cut of your jib.

              1. Only a moron or a Jew hater thinks Israal is a theocracy.

                Which are you?

                1. He’s ribbing America for hypocrisy, a hobby I fully endorse – why else include Saudi Arabia?

                  1. Its not “hypocrisy” to support Israel. You are endorsing his anti semitic crap.

                    As for Saudi Arabia, Joe Stalin says hi.

                    1. I’m all for supporting Israel for both moral and practical reasons, but our double standard there is hard to deny, even if easy to justify.

                      Saudi Arabia sucks, we should stop dealing with them. Dunno much about Stalin’s position on the issue, don’t much care.

                    2. “Dunno much about Stalin’s position on the issue”

                      Ok, I will use smaller words.

                      We supported Stalin’s Russia because we felt we needed it despite it being a horrible state. Likewise we support SA because we feel we need it.

                      Sometimes nations have to date bad nations.

                    3. OK, I can dig some realpolitik.

                      What is the value add with Saudi Arabia, though?

                      There’s a pretty decent case to be made that they are the cause of most of the problems we have in the region.

                  2. America is hugely hypocritical in is support of Saudi Arabia. But finding a kernel of truth from a sludge pump is ill advised.

                    1. Yeah, I was overly optimistic about this guy.

                    2. Sarcastr0,

                      I have a sneaking suspicion it’s RestoreWesternHegemony/ActualRightWingPatriot. You know, the guy who wants to gas all his political opponents, is obsessed with gay sex, and is uncharacteristically coherent whenever he talks about the pitfalls of qualified immunity.

                2. Should the US stop supporting Israel until they no longer build settlements in the West Bank? What is the libertarian perspective on Palestinian property rights? Also, try having a mixed faith or gay marriage in Israel – NOT Kosher. Facts don’t care about your feelings.

              2. Don’t like the cut of his jib. He’s an antisemitic troll.

                1. I’m not sure I read that in him…yet. So far I see ribbing America’s inconsistencies in it’s foreign policy, which is a good put, albeit a justifiable one.
                  But I see where you are coming from.

                  1. Really? It’s pretty obvious to me:

                    1. His screen name is RabbiHarveyWeinstein. He’s connecting Weinstein and his crimes to the practice of Judaism.

                    2. Above he said this, “Israel is America’s greatest ally and would never steal military secrets or use the goyim to police Arab states.” Here, he is insinuating that Israel and the Jews are manipulating non-Jews into doing their bidding.

                    1. I had missed the name. OK, he sucks. What I took as sarcasm looks to be a sincere axe to grind.

                    2. 1. Harvey Weinstein is innocent, at least of sexual assault. He is most likely guilty of labor laws related to sexual quid pro quos.

                      2. Are Ukrainians manipulating non-Ukrainians by saying that Russia “hacked” American elections by posting dank memes on Facebook?

                      Also, I find it very funny that Reason doesn’t criticize Israel for having a wall around it’s land and heavily restricted immigration standards (i.e. Law of Return). Shouldn’t the Palestinians help ignite the Israeli economy?

                  2. Lokk more closely, sarcastro.

                    The guy is a raving antisemitic loon.

                    1. Yeah…I was just a bit slower on the uptake than most.

                2. Please, I will never forget the Shoah. In fact, I think Holocaust education should be mandatory for students in every state! Please visit the Holocaust museum and buy something at the gift shop. Also, don’t kvetch too much about the Holodomor and the Khmer Rouge. Socialists, like Bernie Sanders, have their hearts in the right place and it wasn’t real socialism anyway.

              3. I’d like to hope some further examination has amended your assessment.

                1. Oh, it has.

          2. A “Christian nation” does not equal “theocracy”.

            The Declaration referred to “Laws of Nature”* and “Nature’s God” What “God” do you think he was referring to except the Christian God?

            *[Locke, “law of nature, i. e. to the will of God” 2d Treatise on Government: Of Civil Government, Chapter XI §. 135.]

            1. Locke’s laws of nature are not Christian in nature, chief. Unless you want to dilute what Christian means until it’s meaningless. In which case, you win, congrats on your no-prize.

              Jefferson’s faith has been well studied. The author of the Declaration wasn’t super into the Christian God, either as known then, nor as known now.
              He studied, and knew, a bunch of religions, and integrated a number of them into his faith.

              1. Locke was a practicing Christian. He wasn’t referring to Zeus.

                1. That’s some weak-ass crap, Bob.
                  Not everything a Christian writes about is inherently Christian.

                  1. “inherently Christian”

                    Locke had likely never met a Jew or a Muslim. His whole conception of God was the Christian God.

                    You are retrofitting 21st century views on a 17th century man.

                  2. I’m not talking about whether Locke’s philosophy was Jewish or Islamic – I’m saying it wasn’t religious in nature at all.

                    Anyhow, here’s your reasoning:
                    Our country’s Founders looked to Locke as part of their inspiration. Locke was a Christian. Therefore his philosophy was Christian. Therefore the Founders created American as a Christian nation.

                    Do you see how extremely attenuated that line of reasoning is?

                2. >Church of England
                  >Christian
                  good luck next time, Bob

    4. Funny. There’s nothing about Christianity in my copy of the D of I.

      Anyway, you need to define what you mean by “Christian nation.”

      If it’s just that Christianity was then and is now the most popular religion in the country, fine.

      But if you think Christians enjoy, or ought to enjoy, as a matter of law, special privileges or political powers not granted to other citizens then you are just wrong.

      If you think specifically Christian beliefs, or Christianity are or ought to be enshrined somehow in our laws and practices you are wrong.

      1. Don’t give them ideas. They might try to found their own country if the new social media, credit card, fundraising website companies don’t work out. Hopefully, it will be peaceful, like the King David Hotel Accords.

  4. Welp, it looks like almost no one has discussed the actual topic of the article or post, so I’ll start.

    When a claim of citizenship is raised in an immigration proceeding, or the government seeks to denaturalize someone, I think the most prudent course of action is to treat them as essentially criminal proceedings, with all the protections those entail.

    For the individual, deprivation of citizenship can be a worse consequence than incarceration. Deportation of an actual or former citizen to a country they have no connection to or don’t speak the language of could even be a death sentence.

    For society as a whole, letting the government too easily deprive citizenship gives it the power to reshape the body politic as a whole. It’s easy to respect the rights of citizens, when you can just decide people you don’t want to have rights aren’t citizens anymore.

    1. I guess the same thing could be said about squatters and their rights before an eviction. I just wish they wouldn’t steal all the copper piping and electrical wire.

    2. Does denaturalization necessarily mean deportation? Could someone be denaturalized and then be given (permanent) resident alien status? This would be like a demotion.

      I understand that perhaps the point of most denaturalizations are to kick out people.

      Also, since it was at once not uncommon to be able to vote if you weren’t a citizen, but had made a home in a state like Massachusetts, is it possible to be a citizen of a state and not the U.S.? Can states explicitly grant citizenship on their own, which citizens would necessarily be US citizens, regardless of what the feds have to say about it?

      When did citizenship become a wholly federal and legally explicit status, as opposed to wha seems to be an implicit concept based on residence, from a reading of state constitutions?

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