THE SOVEREIGN CITIZEN – DENATURALIZATION AND THE ORIGINS OF THE AMERICAN REPUBLIC
by Patrick Weil. University of Pennsylvania Press, 2012. Paper $34.95. ISBN-10: 0812222121.
Reviewed by Anna O. Law, CUNY Brooklyn College, Department of Political Science. Email: alaw [at] brooklyn.cuny.edu
French social scientist Patrick Weil has written a book that focuses on a seemingly minor aspect of U.S. immigration law: denaturalization policy, or the process by which one loses one’s American citizenship. Weil uses denaturalization policy as a vehicle to comment on other aspects of the American politics, most immediately the arbitrariness and politically contingent nature of one’s United States citizenship status, not just of immigrants, but also of native-born citizens. Weil notes that “Present –day Americans feel secure in their citizenship” (p.1). One comes away from the book having new appreciation for the precariousness of one’s U.S. citizenship and the ease at points in U.S. history when the government can arbitrarily revoke one’s citizenship, thereby possibly rendering even a native-born citizen effectively stateless.
In most standard immigration law casebooks, naturalization policy is a subsection of a chapter on “citizenship”. The coverage of denaturalization policy is further relegated to the citation of one or two cases and is listed under a sub-sub-section of the naturalization section called “loss of citizenship” that also includes a section on expatriation (Aleinikoff et al. 2008 and Legomsky et al. 2009). Given the breadth and complexity of U.S. immigration law, it is understandable that leading casebooks would limit the pages devoted to denaturalization policy when there is so much more to cover. Yet using denaturalization policy, Weil’s THE SOVEREIGN CITIZEN – DENATURALIZATION AND THE ORIGINS OF THE EARLY REPUBLIC provides insight into diverse constitutional and political phenomenon that would be of interest not just to immigration scholars, but also to those working on federalism, constitutional interpretation, and the internal politics of the Supreme Court.
Weil’s book utilizes multiple-methodologies including doctrinal analysis, archival work with the papers of former Supreme Court Justices, analysis of many other government reports, and interviews with former Supreme Court law clerks. In combining all these data sources, he is able to elucidate the processes and mechanisms by which policy entrepreneurs, administrative capacity, changes of personnel on the Court, scant textual support for federal immigration power, the ideology of the Justices, and jealousies among administrative agencies all interact to produce particular policy outcomes.
Part I of the book focuses on the “Federalization of Naturalization”. Here Weil challenges the conventional wisdom that naturalization was the only aspect of immigration policy that was exclusively controlled by the federal [*622] government before the Civil War and that the federal government assumed control over all aspect of immigration in 1882. That standard assumption is reasonable since this policy is the only aspect of immigration law that is actually enumerated in the Constitution at Article I, Section 8, Clause 4 that gives Congress the power “to establish a uniform rule of naturalization.” Indeed Congress passed the Naturalization Act 1790 in an attempt to bring consistency and integrity to the array of naturalization procedures used by the states. However, Weil tells us that Act also allowed any “common law court of record” to administer naturalization, thereby making more than five thousand state courts across the U.S. eligible to process naturalization applications. This move resulted in inconsistency and in some cases, fraudulent naturalizations.
Despite the clearly enumerated constitutional power to the national Congress to administer naturalization policy and successive legislative attempts since the Naturalization Act of 1790 to make that a reality, Weil explains that federal control over immigration took much longer and did not occur until the 1930s. Section I, that consists of three chapters, traces the uneven path to federal consolidation of control of naturalization policy and shows that the federal government did not gain full control of this policy area until the twentieth century.
In Chapter 1, Weil discusses several roadblocks to the federal takeover of naturalization policy from the states. Although the federal government wanted to assume all naturalization authority in 1790, they were impeded by practical and logistical considerations including the lack of federal courthouses to carry out naturalization, and the inability of U.S. Attorneys to meaningfully scrutinize and challenge naturalization applications for fraud given that offices’ workload. Because of this lack of administrative capacity, Congress allowed state officials and bureaucrats to continue to administer naturalization into the 20th century (p. 19).
In Chapter 2, Weil explains that despite successive legislative attempts to transition naturalization to the federal government exclusively, by 1925, there were still four different sets of methods used simultaneously across the country to naturalize persons; each was a hodge podge of state and federal bureaucracies and administrators. From this chaotic situation emerged a compromise that took hold in 1926 that involved the Departments of Justice, State, Labor, the Supreme Court, and Congress. The 1926 Naturalization Act gave federal courts the power to designate officers of the Bureau of Naturalization to conduct preliminary hearings and make recommendations to the courts. Under this new procedure the applicant need only appear before the federal courts to take the oath of allegiance if all else was in order. Weil describes this 1926 Act as “a key moment in the history of the naturalization authority in the United States” with an impact that was immediate. Within 6 years of this act, 90 percent of the federal judiciary opted out of running the entire naturalization process themselves and soon after, many state courts also “surrendered naturalization jurisdiction altogether” (p.43).
Chapter 3 details the last of the transfer of the naturalization procedures to the [*623] federal government from the states. Also, in 1940, the Bureau of Naturalization was transferred from the Department of Labor to the Department of Justice thereby marking “the last major step toward the federalization of naturalization authority” (p.50). The procedure, once a totally judicial one, was placed into the hands of a “very small cadre of experts and scholars” and finally by the Immigration Act of 1990 made the procedure was made a wholly administrative one. At the same time, denaturalization reached it’s peak between the Naturalization Act of 1926 and World War II, with the number of denaturalizations numbering about 1000 a year between 1935 and 1941.
Section II consists of three chapters about the contingent nature of one’s citizenship for certain categories of citizens. Chapter 4 turns to the creation of “conditional citizenship” for certain categories of “un-American” citizen’s via interpretations of the 1906 denaturalization clause. The clause was used to deport those who had managed to make their way into the country past the initial exclusion mechanisms. One learns that “Un-American” was defined politically, morally, and racially. The conditional citizenship status applied to native-born women who married foreigners, Americans (both natural born and naturalized) who had acquired another nationality, joined a foreign army, participated in foreign elections, or who were simply residing abroad. The rest of the chapter details the denaturalization case of activist Emma Goldman, who became the first politically motivated stripping of citizenship of an American based on her perceived radical and revolutionary views and associations.
Chapter 5 assesses the denaturalization of “radicals” during the hysteria of World War I. These persons were denaturalized based on two new standards, either a “lack of attachment” to the principles of the U.S. Constitution or, “mental reservation” about their loyalty to the U.S. as evidenced by their embrace of Communism or Socialism or, even if they expressed sympathy for their country of origin. In a novel interpretation of the naturalization statutes, courts accepted the order to be denaturalize U.S. citizens, “based on evidence of present disloyalty as a retroactive indication of disloyalty at the time of naturalization” (p.71, original emphasis) The remainder of the chapter details the racial discrimination against Asians who attempted to naturalize during this period and the confusion over the requirement of naturalization to be a “white person” and whether that requirement applied to different Asian groups.
Chapter 6 is about the largest group of denaturalizations, which was not the racial or radical denaturalizations, but that of naturalized citizens living abroad, some 6,631 who were subject to the revocation of their citizenship between 1937 and 1946. (p.90). Naturalized citizens who moved abroad within 5 years of their naturalization were perceived as “lacking of intention…to become a permanent citizen of the United States” (p.83). That interpretation was the result in part of turf wars between the Department of State and the Department of Justice. Because the power of denaturalization was discretionary, not surprisingly it became used as a “symbolic tool” by the State Department to make a political [*624] point. The two departments reached a truce eventually about the interpretation of the clause, but it was the intention of the State Department to extend the clause to also capture natural born citizens who had moved abroad.
The role of political entrepreneurs in elevating the denaturalization program into a powerful political tool is recounted in Chapter 7. Weil reports that in March of 1942, denaturalizations became “a part of the larger national security program at the instigation of Attorney General Francis Biddle” (p.92). In the Nationality Act of 1941, the law was changed to allow the government to denaturalize based on behavior that occurred post-naturalization. The U.S. entry into World War II provided the political opportunity to push through this policy that the Department of Justice had attempted to implement. The target were members or suspected members of “the Bund” a Nazi organization in the United States founded in 1936, and other fascist groups. The cancellation of naturalizations became an important public relations weapon during this time.
Section III is about the role of the Supreme Court in reigning in the excesses of the immigration bureaucracy’s zeal in using its denaturalization policies in a political manner. Chapter 8 is about the SCHNEIDERMAN case in 1939 where denaturalization proceedings were initiated against a person who was at the time of his naturalization a member of the Communist party. Weil describes the politics within the Supreme Court on that case, as pieced together by his examining the personal papers of several justices. The case is significant in Weil’s view because the majority opinion signaled a clear shift to respecting the free speech rights of foreign-born citizens, who prior to 1943, could be denaturalized based on the concept of “mental reservation” (p. 122).
The Supreme Court majority’s decision in SCHNEIDERMAN was a blow to the bureaucrats in charge of the Denaturalization Program since the Court did not buy the argument that a naturalized citizen who was a member of a Communist organization “lacked attachment to the U.S.” Chapter 9 is about the case of Carl Baumgartner in which the Supreme Court extended its SCHNEIDERMAN ruling by reversing the denaturalization of a Bund member. The case also had the effect of closing the Denaturalization Program by 1945, although Weil reports that fact did not stop denaturalizations from continuing. The BAUMGARTNER case also did not settle the dispute among justices within the Court itself who sharply differed on the question of whom, the government or the citizen, had the burden of proof in a denaturalization procedure.
Chapter 10 is about the inter-war period. Weil writes in this chapter about the shift in Court membership as Murphy and Rutledge died in 1949 and the Court began granting certiorari to denaturalization cases again and struck down lower court rulings based on the high Court’s statutory interpretation of a “precise, narrow, and applicant-rights-oriented” view of naturalization law. However, during this period, while the political denaturalizations decreased in number due to the doctrine laid out in SCHNEIDERMAN and BAUMGARTNER, the number of denaturalizations of persons living abroad were rising again and the [*625] targets were “Zionists” or Russian and German Jews who returned to Palestine (p.143). The lower federal courts were not just stripping citizenship from foreign born persons, they were also stripping native-born citizens at a quick pace and on a variety of grounds including “voting in elections abroad”, naturalizing in a foreign country, or serving in a foreign army (whether voluntarily or coerced), or simply residing abroad. These denaturalizations amounted to 8,575 in 1949 and 8,350 in 1953.
In turned out that the SCHNEIDERMAN decision was quite influential as the Supreme Court began applying a heightened scrutiny standard and also began requiring the government to meet a very high burden of proof before denaturalizing someone. Chapter 11 describes the Court applying this standard to denaturalization cases involving native-born U.S. citizens who stood to have their citizenship revoked because of alleged service in a foreign army, leaving the U.S. to avoid the draft, or for deserting the military during wartime. Over three cases, the Justices wrote a total of 12 separate opinions, an indication of the many fissures on the Court over the subject (p.147). Through close readings of the papers of Chief Justice Earl Warren and other Justices, Weil pieces together the range of political and doctrinal considerations that were on the table in these three cases. Weil does a particularly masterful job with these materials (combined with interviews of former law clerks) of uncovering Chief Justice Warren’s doctrinal innovation that sovereignty resided within individual citizens. That idea was to lay the groundwork to make one’s citizenship more secure against government action in a future case.
Chapter 12 describes several expatriation cases in which native-born citizens and naturalized citizen are considered by the government and lower courts to have given up his/her citizenship by moving abroad in part to avoid the draft or by serving in a foreign army. Weil explains how the majority was finally able to secure American citizenship in AFROYIM V RUSK (1967). Hugo Black wrote the majority opinion in which he built on Warren’s concept of “citizen sovereignty” used in an earlier case. In AFROYIM, the previously expansive interpretation of expatriation was restricted and Black’s opinion concluded that the U.S. could not take away a native-born person’s citizenship unless that person voluntarily relinquished it.
In the conclusion, Weil notes that Warren’s big victory in AFROYIM, a battle ten years in the making, has been upheld in subsequent legal challenges and reaffirmed by legislation. Eventually, as part of the 1986 Immigration Reform and Control Act, Congress and the President wrote into law that Americans could not lose their citizenship unless they voluntarily performed a limited list of acts including naturalization in another country, serving in the armed services of another state or a foreign nation engaged in hostilities against the U.S. After these many reforms, Weil notes, “the numbers speak for themselves: between 1907 and 1967, a total of 22,000 denaturalizations were concluded. Since 1968, there have been fewer than 150” (p.179).
One could wish that Weil had placed denaturalization policy in the broader context of the development of U.S. [*626] immigration law, but that would be to criticize him for writing a book he did not write instead of evaluating the book he actually wrote. Indeed THE SOVEREIGN CITIZEN does not cover the sweep of U.S. immigration law, but neither do immigration law casebooks cover many of the denaturalization cases cited by Weil. However, Weil’s book highlights what is missed in casebooks. First, the basis of federal power over immigration is not clear even though the federal government post-1882 keeps insisting on congressional plenary power over all aspects of immigration. Well into the 1930s, the Justices are disagreeing on the true source of federal immigration power as they cite sources as diverse as the War Powers Act, the naturalization clause, and the congressional plenary power doctrine (a non-constitutional based source).
Second, although the U.S. Constitution lays out guidelines for the division of authority between the national government and the states, even on naturalization and denaturalization policy (the former a clearly enumerated power of Congress), the consolidation of federal control over this area as well as the strongest protections for individual’s citizenship rights was still contingent upon much more mundane factors such as sheer administrative capacity, smoothing over interagency conflict, and getting a certain configuration of membership on the high Court. Weil’s findings in Section I could be read to call into question the obviousness and inevitability of federal control over other aspects of immigration – or at least to point out the very secondary role the constitutional text actually plays in explaining federalism configurations of state and national power.
Third, the role of the Supreme Court in immigration policy becomes clearer. Weil’s careful study of the Warren Court on denaturalization cases calls into question the strength of the plenary power doctrine that is assumed to dominate Supreme Court jurisprudence in immigration law. This is an area that is supposed to be the most inhospitable to substantive due process claims given that one’s entry and immigration status in our nation has been regarded as a matter of grace, not right. His findings on this point are consistent to mine in THE IMMIGRATION BATTLE IN AMERICAN COURTS that the Supreme Court sides with the government most of the time, but it can be moved to invoking due process protections when confronted with what they perceive as an egregious miscarriages of justice as in the Court’s eventual conclusion in AFROYIM that citizens must voluntarily give up their citizenship instead of having it taken from them without their consent (Law 2010).
In the end, using a seemingly obscure and quixotic element from the labyrinth that is U.S. immigration law, Weil is able to illuminate many other aspects of the evolution of broader immigration law, judicial behavior, and legal outcomes.
Aleinikoff, Alexander T., David A. Martin, and Hiroshi Motomura. 2008. IMMIGRATION AND CITIZENSHIP PROCESS AND POLICY. New York: Thomson West, 6th ed.
Law, Anna O. 2010. THE IMMIGRATION BATTLE IN AMERICAN COURTS, New [*627] York: Cambridge University Press.
Legomsky, Stephen H. and Christina M. Rodriguez. 2009. IMMIGRATION AND REFUGEE LAW AND POLICY. Foundation Press, 5th ed.).
AFROYIM V RUSK, 387 U.S. 253 (1967)
BAUMGARTNER V U.S., 320 U.S. 665 (1944)
SCHNEIDERMAN V U.S., 320 U.S. 118 (1943)
Copyright 2013 by Anna O. Law.