387 U.S. 253 (1967), 456, Afroyim v. Rusk

Docket Nº:No. 456
Citation:387 U.S. 253, 87 S.Ct. 1660, 18 L.Ed.2d 757
Party Name:Afroyim v. Rusk
Case Date:May 29, 1967
Court:United States Supreme Court

Page 253

387 U.S. 253 (1967)

87 S.Ct. 1660, 18 L.Ed.2d 757




No. 456

United States Supreme Court

May 29, 1967

Argued February 20, 1967




Petitioner, of Polish birth, became a naturalized American citizen in 1926. He went to Israel in 1950, and in 1951 voted in an Israeli legislative election. The State Department subsequently refused to renew his passport, maintaining that petitioner had lost his citizenship by virtue of § 401(e) of the Nationality Act of 1940 which provides that a United States citizen shall "lose" his citizenship if he votes in a foreign political election. Petitioner then brought this declaratory judgment action alleging the unconstitutionality of § 401(e). On the basis of Perez v. Brownell, 356 U.S. 44, the District Court and Court of Appeals held that Congress, under its implied power to regulate foreign affairs, can strip an American citizen of his citizenship.

Held: Congress has no power under the Constitution to divest a person of his United States citizenship absent his voluntary renunciation thereof. Perez v. Brownell, supra, overruled. Pp. 256-268.

(a) Congress has no express power under the Constitution to strip a person of citizenship, and no such power can be sustained as an implied attribute of sovereignty, as was recognized by Congress before the passage of the Fourteenth Amendment, and a mature and well considered dictum in Osborn v. Bank of the United States, 9 Wheat. 738, 827, is to the same effect. Pp. 257-261.

(b) The Fourteenth Amendment's provision that "All persons born or naturalized in the United States . . . are citizens of the United States . . ." completely controls the status of citizenship, and prevents the cancellation of petitioner's citizenship. Pp. 262-268.

361 F.2d 102, reversed.

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BLACK, J., lead opinion

MR. JUSTICE BLACK delivered the opinion of the Court.

Petitioner, born in Poland in 1893, immigrated to this country in 1912 and became a naturalized American citizen in 1926. He went to Israel in 1950, and in 1951, he voluntarily voted in an election for the Israeli Knesset, the legislative body of Israel. In 1960, when he applied for renewal of his United States passport, the Department of State refused to grant it on the sole ground that he had lost his American citizenship by virtue of § 401(e) of the Nationality Act of 1940, which provides that a United States citizen shall "lose" his citizenship if he votes "in a political election in a foreign state."1 Petitioner then brought this declaratory judgment action in federal district court alleging that § 401(e) violates both the Due Process Clause of the Fifth Amendment and § 1, cl. 1, of the Fourteenth Amendment,2 which grants American citizenship to persons like petitioner. Because neither the Fourteenth Amendment nor any other provision of the Constitution expressly grants Congress the power to

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take away that citizenship once it has been acquired, petitioner contended that the only way he could lose his citizenship was by his own voluntary renunciation of it. Since the Government took the position that § 401(e) empowers it to terminate citizenship without the citizen's voluntary renunciation, petitioner argued that this section is prohibited by the Constitution. The District Court and the Court of Appeals, rejecting this argument, held that Congress has constitutional authority forcibly to take away citizenship for voting in a foreign country based on its implied power to regulate foreign affairs. Consequently, petitioner was held to have lost his American citizenship regardless of his intention not to give it up. This is precisely what this Court held in Perez v. Brownell, 356 U.S. 44.

Petitioner, relying on the same contentions about voluntary renunciation of citizenship which this Court rejected in upholding § 401(e) in Perez, urges us to reconsider that case, adopt the view of the minority there, and overrule it. That case, decided by a 5-4 vote almost 10 years ago, has been a source of controversy and confusion ever since, as was emphatically recognized in the opinions of all the judges who participated in this case below.3 Moreover, in the other cases decided with4 and since5 Perez, this Court has consistently invalidated on a case-by-case basis various other statutory sections providing for involuntary expatriation. It has done so on various grounds, and has refused [87 S.Ct. 1662] to hold that citizens can be expatriated without their voluntary renunciation of

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citizenship. These cases, as well as many commentators,6 have cast great doubt upon the soundness of Perez. Under these circumstances, we granted certiorari to reconsider it, 385 U.S. 917. In view of the many recent opinions and dissents comprehensively discussing all the issues involved,7 we deem it unnecessary to treat this subject at great length.

The fundamental issue before this Court here, as it was in Perez, is whether Congress can, consistently with the Fourteenth Amendment, enact a law stripping an American of his citizenship which he has never voluntarily renounced or given up. The majority in Perez held that Congress could do this because withdrawal of citizenship is "reasonably calculated to effect the end that is within the power of Congress to achieve." 356 U.S. at 60. That conclusion was reached by this chain of reasoning: Congress has an implied power to deal with foreign affairs as an indispensable attribute of sovereignty; this implied power, plus the Necessary and Proper Clause, empowers Congress to regulate voting by American citizens in foreign elections; involuntary expatriation is within the "ample scope" of "appropriate modes" Congress can adopt to effectuate its general regulatory power. Id. at

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57-60. Then, upon summarily concluding that

there is nothing in the . . . Fourteenth Amendment to warrant drawing from it a restriction upon the power otherwise possessed by Congress to withdraw citizenship,

id. at 58, n. 3, the majority specifically rejected the "notion that the power of Congress to terminate citizenship depends upon the citizen's assent," id. at 61.

First, we reject the idea expressed in Perez that, aside from the Fourteenth Amendment, Congress has any general power, express or implied, to take away an American citizen's citizenship without his assent. This power cannot, as Perez indicated, be sustained as an implied attribute of sovereignty possessed by all nations. Other nations are governed by their own constitutions, if any, and we can draw no support from theirs. In our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship. Our Constitution governs us and we must never forget that our Constitution limits the Government to those powers specifically granted or those that are necessary and proper to carry out the specifically granted ones. The Constitution, of course, grants Congress no express power to strip people of their citizenship, whether, in the exercise of the implied power to regulate foreign affairs or in the exercise of any specifically granted power. And even before the adoption of the Fourteenth Amendment, views were [87 S.Ct. 1663] expressed in Congress and by this Court that, under the Constitution the Government was granted no power, even under its express power to pass a uniform rule of naturalization, to determine what conduct should and should not result in the loss of citizenship. On three occasions, in 1794, 1797, and 1818, Congress considered and rejected proposals to enact laws which would describe certain conduct as resulting in expatriation.8 On each occasion

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Congress was considering bills that were concerned with recognizing the right of voluntary expatriation and with providing some means of exercising that right. In 1794 and 1797, many members of Congress still adhered to the English doctrine of perpetual allegiance and doubted whether a citizen could even voluntarily renounce his citizenship.9 By 1818, however, almost no one doubted the existence of the right of voluntary expatriation, but several judicial decisions had indicated that the right could not be exercised by the citizen without the consent of the Federal Government in the form of enabling legislation.10 Therefore, a bill was introduced to provide that a person could voluntarily relinquish his citizenship by declaring such relinquishment in writing before a district court and then departing from the country.11 The opponents of the bill argued that Congress had no constitutional authority, either express or implied, under either the Naturalization Clause or the Necessary and Proper Clause, to provide that a certain act would constitute expatriation.12 They pointed to a proposed Thirteenth

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Amendment, subsequently not ratified, which would have provided that a person would lose his citizenship by accepting an office or emolument from a foreign government.13 Congressman Anderson of Kentucky argued:

The introduction of this article declares the opinion . . . that Congress could not declare the acts which should amount to a renunciation of citizenship; otherwise there would have been no necessity for this last resort. When it was settled that Congress could not declare that the acceptance of a pension or an office from a foreign Emperor amounted to a disfranchisement of the citizen, it must surely be conceded that they could not declare that any other act did. The cases to which their powers before this amendment confessedly did not extend are very strong, and induce a belief that Congress could not in any case declare the acts which should cause "a person to cease to be a citizen." The want of power in a case like...

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