Can American Citizens Lose Their Citizenship?

Yes, but only if they intend to relinquish it (or, if they are naturalized citizens and committed fraud during the naturalization process).

Let's begin with the constitutional text, here from section 1 of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Once you have American citizenship, you have a constitutional entitlement to it. If you like your American citizenship, you can keep your American citizenship—and that's with the Supreme Court's guarantee, see Afroyim v. Rusk (1967):

There is no indication in these words of a fleeting citizenship, good at the moment it is acquired but subject to destruction by the Government at any time. Rather the Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other governmental unit.

(Special bonus in Afroyim: a cameo appearance by a Representative Van Trump in 1868, who said, among other things, "To enforce expatriation or exile against a citizen without his consent is not a power anywhere belonging to this Government. No conservative-minded statesman, no intelligent legislator, no sound lawyer has ever maintained any such power in any branch of the Government.") In Vance v. Terrazas (1980), all the justices agreed with this principle.

Now, as with almost all things in law—and in life—there are some twists. Naturalized citizens can lose their citizenship if they procured their citizenship by lying on their citizenship applications; the premise there is that legal rights have traditionally been voided by fraud in procuring those rights. And citizens can voluntarily surrender their citizenship, just as people can generally waive many of their legal rights. This surrender can sometimes be inferred from conduct (such as voluntary service in an enemy nation's army), if the government can show that the conduct was engaged in with the intent to surrender citizenship. The relevant federal statute, 8 U.S. Code § 1481, provides (emphasis added):

A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality—

(1) obtaining naturalization in a foreign state [as an adult];

(2) … making … [a] formal declaration of allegiance to a foreign state [as an adult];

(3) … 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 serve as a commissioned or non-commissioned officer; or

(4) (A) … serving in … any … employment under the government of a foreign state [as an adult] if he has or acquires the nationality of such foreign state; or

(B) … serving in … any … employment under the government of a foreign state [as an adult] … for which … employment … [a] declaration of allegiance is required; or

(5) making a formal renunciation of nationality before a diplomatic … officer of the United States in a foreign state …;

(6) making in the United States a formal written renunciation of nationality … whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense; or

(7) [being convicted of] committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18 [rebellion or insurrection], or willfully performing any act in violation of section 2385 of title 18 [advocating overthrow of government], or violating section 2384 of title 18 [seditious conspiracy] by engaging in a conspiracy to overthrow … by force the Government of the United States, or to levy war against them ….

But as both the statute and Afroyim make clear, the conduct listed in (1) through (7) will only surrender the person's citizenship if the person engaged in it "with the intention of relinquishing" citizenship. Subsection (b) of this statute provides that "Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily." That presumption is relevant when a person claims that one of the expatriating acts was done under duress, e.g., that he was forced to serve in an enemy army. But

It is important … to note the scope of the statutory presumption. [The subsection] provides that any of the statutory expatriating acts, if proved, are presumed to have been committed voluntarily. It does not also direct a presumption that the act has been performed with the intent to relinquish United States citizenship. That matter remains the burden of the party claiming expatriation to prove by a preponderance of the evidence….

This post today was triggered, of course, by President Trump's saying he is "giving serious consideration" to revoking Rosie O'Donnell's citizenship. I have no reason to think that O'Donnell has engaged in any of these acts, such as (in her case) "going through the process of obtaining her Irish citizenship through her grandparents," "with the intention of relinquishing United States nationality." American law allows dual citizenship, and "does not require a U.S. citizen to choose between U.S. citizenship and another (foreign) nationality. A U.S. citizen may naturalize in a foreign state without any risk to their U.S. citizenship."

Comments

[Incunabulum]

> If you like your American citizenship, you can keep your American citizenship

Oh, in other words it's a lie

Like with Obamacare. Where Obama said that about your doctor and turned out he was lying.

[Katall]

Idk. I have the same doctor I had before Obama are. Just saying

[Frank Drackman]

When did you have your stroke?

[Stupid Government Tricks]

Your one anecdote overrides the grand overall statistical evidence. You should advertise yourself as some gold standard for scientific experiments.

[Drewski]

What statistical evidence?

[Malika the Maiz]

This might be apex whataboutism.

[santamonica811]

This may be an interesting and fun thing to blog about. (And, for law professors, certainly a legitimate thing to blog about.)

But, for the rest of us, it's simple. Trump is lying. We get it. Fish gotta swim. Birds gotta fly. Trump's gotta lie. It is reflexive and natural for him. So (at least for me) this is the kind of lie that doesn't even raise an eyebrow. It doesn't hurt anyone. (I doubt ole' Rosie is doing more than chuckling at this.) It's allowing Trump to exorcise his daily bile on harmless mischief. It's allowing Fox News to have its own fun reporting on it, and MSNBC, in turn, the same fun pointing out the idiocy.

Everyone wins.

[Purple Martin]

. . .

[Purple Martin]

Yep. From the beginning, one of the things I've wondered about Donald Trump is, to what extent does he believe the false things that he says?

He's constantly proclaiming falsities ranging from slight exaggerations to completely untrue assertions about obviously verifiable things. That inherent dishonesty manifests itself in the same way dolphins manifest playfulness—effortlessly, energetically and constantly.

C'mon, admit it commentariat…that's what you love about him.

[Stupid Government Tricks]

No, he's constantly proclaiming what he believes at the moment, like all politicians. Unlike almost all other politicians, he's not embarrassed to change his mind moments or months later, which is what endears him to his fans, and would indeed be preferable in other politicians. I call those other politicians intentional liars, since they repeat the party line long past its use-by date.

The one exception I will call on Trump for intentionally lying and knowing it is this Epstein nonsense. Nothing anyone could have done would have better convinced me the entire political class is covering up the Epstein client list than his abrupt 180° reversal. I'm even beginning to wonder if Epstein did commit suicide. Of course, Trumpistas are probably claiming this is intentional, that he is playing 47D chess to convince the public, but they are as reliably inconsistent as Trump is.

[Glaucomatose]

Unlike almost all other politicians, he's not embarrassed to change his mind moments or months later

If he weren't embarrassed to change his mind, he wouldn't deny doing so and try to gaslight his audience into believing he never said the other thing in the first place.

Or maybe you're right in that he's not embarrassed to change his mind, because it never even occurs to him that he did.

[Stupid Government Tricks]

Your last sentence is what it appears to me. Look at all the final tariffs he's issued. Not the slightest awareness at all.

[Orbital Mechanic]

Just like someone can follow you around while you are driving long enough and discover that you "violated the law" at some point the government can dig down in to your personal history and "prove you committed fraud" at some point. Why are we pretending this is a point of law and not an out of control administration simply evicting anyone they consider undesirable?

I would bet money that soon the Trump DoJ will assert that infants born here were done so "fraudulently" and so therefore must be denied citizenship.

Just like the founders intended, right? Good thing we have all those originalists on the Supreme Courtier.

[Eugene Volokh]

Orbital Mechanic: 1. Only naturalized citizens can be denaturalized based on fraud, and there only based on fraud in the procuring of the naturalization -- not just based on fraud "at some point." There will sometimes be evidence of that, but often there won't be.

2. It's a point of law because, even if Trump decides to actually strip O'Donnell of her citizenship, the matter will come before a court. And I expect that a court will follow the law, whatever Trump might think.

3. As to originalism, note that much of the argument in favor of birthright citizenship is based on the text and original meaning of the Fourteenth Amendment (though some old precedents, which likewise relied on text and original meaning, also play a major role). If I were a lawyer defending birthright citizenship before a conservative Court, I would much rather that its members be originalists than people who thought the Court should focus instead on what they think the Constitution ought to mean given the changing times.

[wvattorney13]

To play devil's advocate, you could construe some of her comments as showing an intent to relinquish citizenship.

""Although I was never someone who thought I would move to another country, that's what I decided would be the best for myself and my 12-year-old child," said O'Donnell, referring to her youngest daughter, Dakota, also known as Clay."

""It's been heartbreaking to see what's happening politically and hard for me personally, as well. The personal is political, as we all know," she continued."

""When it is safe for all citizens to have equal rights there in America, that's when we will consider coming back," said O'Donnell."

It doesn't sound like she's going over to pick shamrocks and drink Guinness; she has left and will come back at some time when a (to her) impossible eventuality has happened. I could see a lawyer arguing that this evinces an intent to give up citizenship.

If I moved to a different state under these circumstances it would be a slam dunk that I gave up my state citizenship.

[Eugene Volokh]

wvattorney13: The state analogy isn't correct, because the Fourteenth Amendment treats federal and state citizenship differently:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

If I move from California to Texas, I may well no longer "reside" in California, and thus I wouldn't be a citizen of California. But if Rosie O'Donnell moves from the U.S. to Ireland (having been born in the U.S.), she remains a citizen of the United States; there is no continuing residence requirement for citizenship, or even a requirement of intent to return.

Indeed, many Americans are long-term expats, whether for work, for family reasons, for reasons of ethnic connection, or because they prefer the weather/lifestyle/etc. in the foreign country. A much smaller number, I expect, are expats because they prefer the foreign country's politics. In any event, none of them lose citizenship simply because they no longer reside in the U.S., or even because they don't intend to come back. And disapproval of America's current political state isn't itself tantamount to an intent to relinquish U.S. citizenship.

[wvattorney13]

I agree with you because the case law has trended that way for a long time. It seems that unlike any other citizenship to show an intent to relinquish U.S. citizenship you have to decree as much. In any other context, leaving a country with the intent to remain in a different country indefinitely would cause you to no longer be such a citizen.

But as you say, we haven't historically treated U.S. citizenship that way. I think as an original matter those cases you cited are wrong, but I have no particular interest in revisiting them.

For example, another way to read the 14A is that you only retain your U.S. citizenship so long as you reside in the United States. But again, history has gone the other way.

[Eugene Volokh]

wvattorney13: Can you elaborate please, on what contexts you had in mind when you say, "In any other context, leaving a country with the intent to remain in a different country indefinitely would cause you to no longer be such a citizen"?

My understanding is that lots of citizens of many countries move to a different country with the intent to live there indefinitely, while still retaining the original country's citizenship. Indeed, many people do that when they get married; I have a vague sense that in the past, marrying a foreign citizen would (in many countries) cause the wife to lose her citizenship and acquire the husband's citizenship, but my sense is that this isn't the norm any more in most western countries.

Beyond that, there are lots of people who have dual citizenship; most of them presumably plan to live in only one of their countries of citizenship. (There may well still be some countries that don't generally allow dual citizenship, but my sense is that many western countries do.) Likewise, there are lots of other long-term expats who, to my knowledge, don't generally lose the citizenship in the foreign country.

Am I misunderstanding your factual claim? Or am I just missing some dominant foreign view that, for instance, if you leave France and move to America with the intent to remain indefinitely (for instance, if one is marrying an American and expecting to live with that person in America), "would cause you to no longer be ... a citizen" of your original country?

[wvattorney13]

It's a fair point. I was thinking mostly about state citizenship. It just seems odd that one can abandon his home country with no intent of every returning yet still be described as a citizen of that country.

I know it is done for various reasons, but there is no reason that a more restrictive definition of citizenship couldn't be applied in law just like how the states do it.

As I said, the 14A could easily be construed as a condition precedent of citizenship is that one is a resident of one of the United States--implicit in the sentence as a whole.

[MaddogEngineer]

Except part of what you think appropriate is currently naturalization law, for a baby born outside the United States who would otherwise qualify as a natural born with a citizen parent but has an additional residency requirement by the citizen parent, within a certain window prior to the birth. And of course registering the birth with the State Department.

But as the law, including international law, has a bias against making people stateless, it is rather established law that simple non-residence is not a renunciation of one's citizenship.

[TheAmazingEmu]

The residency requirement for the President of the United States cuts against this. You have to be a natural born citizen and have resided in the United States a certain number of years. But you don't have to have resided in the United States your whole life. If there was a presumption of stripping citizenship, that wouldn't apply.

[ReaderY]

Simply moving to another country isn’t one of the acts that potententially surrender citizenship. If Congress passed a law that said it did, it would be unconstitutional.

[Roger S]

Trump could issue an EO declaring that acquiring foreign citizenship implies an intent to give up USA citizenship. It is true that USA now allows citizens to acquire foreign citizenship, but that policy can be changed.

[MaddogEngineer]

No, he couldn't. That's just as dumb as his purported EO modifying birthright citizenship.

[Roger S]

You say it is dumb, but so far Scotus has refused to block that EO.

[MaddogEngineer]

That's an even dumber thing to say. As if the Supreme Court signals its approval (or disapproval) onthe merits by taking such actions. Unfortunately for you, you're also wrong. The Court did issue its own administrative stay for 30 days, blocking the EO, giving the district court an opportunity to certify a class.

[David Nieporent]

He could issue an EO declaring that naming your kid "Roger" implies an intent to give up US citizenship, too. And it would be equally as legally effective.

[Purple Martin]

I, too, "…could see a lawyer arguing that this evinces an intent to give up citizenship." And that lawyer I could see, is you.

At least, there is nothing in your history to make me think anything other than that you firmly believe revocation of Rosie O'Donnell's U.S. citizenship can and should be both legal, and conducted at the earliest opportunity.

[Stupid Government Tricks]

That's a really piss-poor devil's argument. None of them come close to saying she is breaking off her relationship with the US, and instead can be read more easily as saying she wants to come back at some point.

[wvattorney13]

If I say that I'll do X "when pigs fly" does that show an intention to do X at some point?

[jb]

Wow, so you're saying that it's basically impossible that it will ever be safe for all citizens to share equal rights in the US? If not, I don't understand the analogy.

[wvattorney13]

All citizens DO share equal rights in the United States. She (and you) seem to have some idiosyncratic definition of "safety" "to share" equal rights that will never be satisfied under any condition.

[bernard11]

If I moved to a different state under these circumstances it would be a slam dunk that I gave up my state citizenship.

If you moved to a different state under any circumstances wouldn't it be a slam dunk that you gave up your state citizenship?

Am I a citizen of all six states I've lived in?

[Frank Drackman]

I think it’s “Resident” and some of the (mostly Blue) States are hard asses about tracking people’s down who work in their states for a short time, it’s why I always wear my Groucho Fake fake mustache/glasses when I work in CA or MA

Frank

[Malika the Maiz]

Why would a fake persona have to wear a fake mustache? The writer of the Frank Fakeman busker is just being lazy here.

[Malika the Maiz]

Think about how messed up this is.

Either, Trump is a petty President who would like to use his power to hurt a C-list entertainer for having the temerity to criticize him or

Trump is publicly joking about using his powers to hurt a C-list entertainer for having the temerity to criticize him.

He’s either a horrible abuser of his official power or an incredibly unprofessional, petty official.

Think about the mentality of someone who would support either.

[Estragon]

“Either, Trump is a petty President who would like to use his power to hurt a C-list entertainer for having the temerity to criticize him or

Trump is publicly joking about using his powers to hurt a C-list entertainer for having the temerity to criticize him.”

It’s neither. He is threatening to do something he hasn’t the power to do, to shift the focus away from what Rosie was actually saying. This is a classic Trump move to strip context and focus attention away from an accurate moral critique. Here it is:

https://youtu.be/D7an2ifQmrc?si=GIbAo8aI-A5D2VGb

Trump’s decisions exacerbated the effects of the flooding in Texas. Instead of talking about accountability for that, we are talking about the spectacular threatened use (and abuse) of Trump’s power.

[bernard11]

Or he doesn't know, or believe, that he lacks the power to do that, and if someone told him he wouldn't care, and try to do it anyway.

Some here get offended when I use the term "Fuhrerprinzip," but I think it's the rule Trump goes by, and many of his supporters accept.

[MaddogEngineer]

He's a troll who thinks all law is negotiable, what you can get away with. Most careful people would first consider what is realistic, so that they don't look stupid when they lose. He doesn't think like that, for whatever pathological reason. Often losing demonstrates he's fighting back.

I call him a troll, because much of what he says is often insincere, indifferent to whether what he says is true or possible. That he would like it to be, and his supporters too, is all that matters.

That's why I think he's finally faced a reckoning with the Epstein file BS. When he was trolling about that, he had no idea what evidence actually existed and didn't care. It was useful to him at the time. Now he's paying the price of raised expectations. Either nothing exists, existed but now destroyed, what does exist will disappoint the base, it cannot be released because of the victims' privcacy or ongoing other court cases. Or it really is a cover-up of his own culpability. Something for everyone!

[JoeFromtheBronx]

Trump policies are pushing back on precedents much further back than 1967. And, involuntarily losing citizenship (if not merely for annoying Dear Leader), even birthright citizenship, was allowed for a long time. Not that I'm endorsing it.

The discussion is helpful, but Trump is a revolutionary change maker (see yesterday) & this apparently is par for the course there.

[MollyGodiva]

In case anyone was wondering, this is what fascism looks like.

[wvattorney13]

It's more of Trump runs off at the mouth, says something extravagant for headlines, and then will do nothing more about it. News at 11. IOW, the opposite of fascism.

[LawTalkingGuy]

One notable thing about fascist movements is how fascist leaders never said a bunch of crazy things that turned into crazy actions and they also revered the concept of citizenship.

[MaddogEngineer]

Like claiming your opponent wants to put blacks back in chains.

[LawTalkingGuy]

Notably you had to think back 13 years to find a comparatively crazy example to the things Trump says on a regular basis. But I’m also not sure this is a useful example because Biden was lamentably accusing someone without power of wanting to do something bad whereas Trump is someone in power threatening to do something bad. Pretty important distinction.

[MaddogEngineer]

Sorry to disappoint you, but when something is bad, I condemn it. Which is why I've never voted for Trump and am hostile to MAGA stupidity.

So yes, I was bothered about the guy who said that 13 years ago, who eventually became president of the United States. Just like I'm bothered by Trump today when he says idiotic things. Unlike people like you.

I see a straight line between what Biden said 13 years ago, and an administration that would use the autopen to pardon people without explicit presidential knowledge. Crazy, I know.

[LawTalkingGuy]

Notably you had to think back 13 years to find a comparatively crazy example to the things Trump says on a regular basis. But I’m also not sure this is a useful example because Biden was lamentably accusing someone without power of wanting to do something bad whereas Trump is someone in power threatening to do something bad. Pretty important distinction.

[Malika]

You like it when your representative of the greatest, most powerful country on earth "says something extravagant for headlines, and then will do nothing more about it" (and let's be clear, "extravagant" here means petty and "do nothing more about it" means petulant)?

[jb]

The problem with this kind of thinking is that for some fraction of the crazy shit Trump says he wants to do, he actually tries to do it. See, e.g.: revoking birthright citizenship or imposing random tariffs against every country in the world. And there's really no way to tell in advance if he's actually going to do any of the crazy things. Since he's President of the United States, we therefore need to take seriously that he at least might try to do any of the random crazy things he says.

[LawTalkingGuy]

You also have a “who will rid me of the meddlesome priest” problem. Maybe Trump won’t sign an order declaring a particular person to not be a citizen. But will some appointee at DOJ engage in some investigative shenanigans?

[Stupid Government Tricks]

They'd still be ignorant if they depended on you.

[LawTalkingGuy]

https://www.unpopularfront.news/p/death-to-america

Has there ever been an American president or even prominent American political figure who had such a personalist approach to citizenship?

[Malika]

Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.

[ReaderY]

What’s happening here is very straightforward.

Trump is starting to get flack even in conservative circles from the disaster in Texas, tariffs, and other issues. By picking a red-meat, emotionally charged issue, his name will be associated with that issue in people’s minds, not with these other issues. So when people think Texas flood dissaster, they won’t think Trump.

Very smart strategy showing a lot of psychological insight into the associational process by which impressions inform in people’s minds which is here, as always, Mr. Trump’s fundamental concern.

Facts have nothing whatsoever to do with it. I hy should Mr. Trump care about irrelevant things? I

[MaddogEngineer]

Yes, very possible. That shows his top tier troll skills, to redirect the political discourse when it's unfavorable. And his enemies keep taking the bait.

[TwelveInchPianist]

The text of the 14th Amendment doesn't leave any room for denaturization or renunciation of citizenship.

But when you start to read the text flexibly, you leave room for exceptions for children of illegal aliens, tourists, etc.

[Roger S]

So you say, but USA practice for a century has been to allow citizens to renounce their citizenship.

[TwelveInchPianist]

They also used to revoke it for minor things like voting in foreign elections. Interpretations change.

[Syd Henderson]

I was surprised by Eugene's comments on renouncing birth citizenship. It's not there in the 14th Amendment.

[Voize of Reazon]

There was some discussion in Congress in the 1790s about whether citizens could renounce their citizenship, but in the end it was held to be a feature of natural law. It would have been difficult for a young country growing its population through immigration to acknowledge that foreign nations could prevent their subjects from changing their allegiance.

[Absaroka]

"(3) entering, or serving in, the armed forces of a foreign state if , ... (B) such persons serve as a commissioned or non-commissioned officer;"

I thought "Wait a minute, what about the Lafayette Escadrille in WWI or the Eagle Squadrons in WWII? We certainly didn't revoke the citizensip of (among many others) Don Gentile just because he was a Pilot Officer in the RCAF. Or MacArthur or Chennault or ... (Maybe MacArthur was OK because the Philippines weren't independent?).

So I looked at the history of the USC section, and if I'm reading it right (unlikely!) this was enacted in 1952, so those were all in the clear. But I wonder why, with those examples recent at the time, we would go to the trouble of forbidding serving in the military of allied armies? And why getting promoted to corporal makes such a difference?

[F.D. Wolf]

From its enactment in 1952 until 1986, the statute contained an exception for individuals "authorized" by the U.S. government. I haven't researched exactly why Congress removed that in 1986, but, if I had to guess, it was a reaction to the Reagan administration's anti-Communist efforts throughout the world, particularly in Central America.

[F.D. Wolf]

But as both the statute and Afroyim make clear, the conduct listed in (1) through (7) will only surrender the person's citizenship if the person engaged in it "with the intention of relinquishing" citizenship.

It would seem relevant to mention that the only reason the quoted provision appears in the statute is because the Court's (erroneous, in my opinion) decision in Afroyim required its insertion to save the statute.

Afroyim v. Rusk (1967) was a 5-4 decision, with the justices split along ideological ground, the five liberals in the majority and the four conservatives in dissent. The decision reversed another 5-4 decision the Court had made all of nine years earlier in Perez v. Brownell (1958).

Afroyim stands for the proposition that an American citizen cannot lose his citizenship without his assent. By its reasoning, an American citizen could voluntarily join a foreign army, fight and kill American allies or even American troops, yet not have his citizenship taken away without his approval. Read Justice Frankfurter's opinion in Perez and Justice Black's opinion in Afroyim and decide for yourself who has the better grasp of American law and history.

For a little insight into how the Founders might have felt about forced expatriation, consider the historical episode known as the "Expulsion of the Loyalists", in which Patriots, in the aftermath of the American Revolution, told tens of thousands of Loyalists, almost all of whom had been born in America and whose families had been there for generations, to get the hell out.

https://en.wikipedia.org/wiki/Expulsion_of_the_Loyalists

[F.D. Wolf]

I'll add that in Vance v. Terrazas, 444 U.S. 252 (1980), another 5-4 case with the justices split along ideological grounds, the Court held that "intent" to commit an expatriating act can be "expressed in words" or "found as a fair inference from proved conduct." Id. at 260.