Noah Feldman: No, the government can't just take away your citizenship

In a memo last month listing its law enforcement priorities, President Donald Trump’s Department of Justice prioritized stripping citizenship from naturalized citizens who pose threats to the U.S., including national security dangers, terrorism, gang affiliations and fraud. Given the administration’s aggressive — and sometimes lawless — efforts to deport noncitizens, including those exercising their First Amendment rights, it’s not surprising that the document has drawn both concern and criticism.

However, the legal reality is that once you’ve obtained citizenship, you have a constitutional right to keep it — a principle affirmed by a Supreme Court decision nearly 60 years ago. Citizenship can only be revoked if it was obtained illegally in the first place or if the individual lied about or concealed a material fact during the naturalization process. Even then, revocation can only happen after a proceeding before a federal district court judge.

What’s more, this isn’t the first time Trump has expressed plans to denaturalize citizens. During his first term, he went so far as to announce a new Justice Department office focused on the task. Yet only 102 such cases were brought, according to a current administration official with every reason to maximize the numbers. And although no publicly available source indicates the number of denaturalizations that actually occurred, the answer seems likely to be very few, as the administration has been unwilling to disclose the number of cases it won.

The upshot is that like many Trump initiatives, this one should be understood more as a publicity stunt than a genuine policy undertaking. The goal is certainly to frighten naturalized citizens into refraining from criticizing the administration — in other words, to chill their free speech rights. Pointing out the legal limitations of this threat is therefore an important part of standing up for the First Amendment.

The legal background here starts with Afroyim v. Rusk, a 1967 decision written by Justice Hugo Black. Black, one of the great liberal justices of all time, was appointed by Franklin D. Roosevelt in 1937 and served until 1971 — the fifth-longest tenure in the history of the Supreme Court. Until the Afroyim case, Congress had used legal means to revoke citizenship, including a law that barred voting in other countries’ elections. Afroyim, a naturalized American born in Poland, moved to Israel in 1949 and voted in the 1951 Israeli Knesset election. When he tried to return to the U.S. in 1960, he was denied a passport and told he was no longer a citizen. (Afroyim had strongly leftist views and may have been a Communist, which might be why the government enforced the law against him.)

The Supreme Court struck down the law. Black wrote in resounding terms that: "The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. We hold that the Fourteenth Amendment [protects] every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race."

The decision recognized a naturalized citizen’s “constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.”

Even with that decision, federal law still allows an individual’s citizenship to be stripped if it was “illegally procured” or procured “by concealment of a material fact or by willful misrepresentation.” However, the government must go to court and convince a federal district judge to strip the citizenship under the terms of the law before that can occur.

The “illegally procured” provision of the law is the worrisome part. It does not technically require lying. Rather, the inquiry is whether the individual fulfilled all the requirements of citizenship in the first place. These include lawful permanent residency for the relevant period, “good moral character,” attachment to “the principles of the Constitution of the United States,” and being “well-disposed to the good order and happiness of the United States.”

The “good moral character” criterion is partly explained by statute. Among other things, the law says an individual lacks good moral character if they’ve committed certain crimes. Yet as part of the initial application process, the immigration officer in charge of a case ordinarily has considerable discretion to determine whether the person indeed does have good moral character. That makes the revocation of citizenship on that ground legally tricky.

The Trump administration might conceivably try to use this provision to claim there were facts not known at the time of naturalization that suggest a given person lacked good moral character and therefore procured citizenship illegally. But that would require the courts to answer the subtle legal question of what conduct, unknown at the time of naturalization, would have counted as evidence the individual lacked good moral character to the extent they would originally have been denied citizenship.

“Attachment to the principles of the Constitution” and “being well-disposed to the good order of the United States” are also very broad terms. Again, if the Trump administration sought to strip someone’s citizenship on these bases, it would have to show that there were facts unknown at the time of naturalization that would have answered these questions in the negative.

The federal courts are likely to be skeptical of efforts to use these provisions to strip citizenship from people Trump simply dislikes. The administration would have to convince a judge that citizenship had been illegally obtained. And by its terms, the law doesn’t apply to any political beliefs or values or affiliations held by naturalized citizens after they become citizens. Those are fully protected by the First Amendment.

The bottom line is that the significant legal barriers to stripping citizenship are likely to restrict the administration’s ability to make use of the existing provisions of the law. That’s almost certainly why the president’s objective seems to have had little meaningful success during his first term.

As written, the law is not as precise as it should be regarding which subsequently discovered facts might count as evidence of a lack of good moral character. If Trump actually tries to exploit this provision, the law should be changed to make it more precise. For now, the law appears adequate to fulfill its purpose, which, as Justice Black put it, is to protect citizens against “forcible destruction of citizenship” regardless of identity or the exercise of First Amendment rights.

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This column reflects the personal views of the author and does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."