Schneider v. Rusk

No. 368. Argued April 2, 1964.— Decided May 18, 1964. Appellant, who was born in Germany, came to this country with her parents as a child and acquired derivative American citizenship. She lived abroad since graduation from college, became married to a German national, and, except for two visits back to this country, has lived in Germany for the past eight years. The State Depart- ment denied her a passport, certifying that she had lost her Ameri- can citizenship under §352 (a)(1) of the Immigration and Na- tionality Act of 1952, which provides that a naturalized citizen, with exceptions not material here, loses citizenship by continuous resi- dence for three years in the country of origin. She thereupon sued in the District Court for a declaratory judgment that she is still an American citizen and has appealed from that court’s adverse decision. Held: by a majority of this Court that §352 (a)(1) is discriminatory and therefore violative of due process under the Fifth Amendment of the Constitution, since no restriction against the length of foreign residence applies to native-born citizens, though some members of that majority believe that Congress lacks constitutional power to effect involuntary divestiture of citizenship. Pp. 164-169. 218 F. Supp. 302, reversed. Milton V. Freeman argued the cause for appellant. With him on the briefs were Robert E. Herzstein, Horst Kurnik and Charles A. Reich. Bruce J. Terris argued the cause for appellee. With him on the brief were Solicitor General Cox, Assistant Attorney General Miller and Beatrice Rosenberg. Jack Wasserman, David Carliner and Melvin L. Wulf filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.

Opinion of the Court. 377U.S.

Mr . Just ice Douglas delivered the opinion of the Court. The Immigration and Nationality Act of 1952, 66 Stat. 163, 269, 8 U. S. C. §§ 1101, 1484, provides by § 352: “(a) A person who has become a national by naturalization shall lose his nationality by— “(1) having a continuous residence for three years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated, except as provided in section 353 of this title,1 whether such residence commenced before or after the effective date of this Act . . . .” (Italics added.) Appellant, a German national by birth, came to this country with her parents when a small child, acquired de- rivative American citizenship at the age of 16 through her mother, and, after graduating from Smith College, went abroad for postgraduate work. In 1956 while in France she became engaged to a German national, returned here briefly, and departed for Germany, where she married and where she has resided ever since. Since her marriage she has returned to this country on two occasions for visits. Her husband is a lawyer in Cologne where appel- lant has been living. Two of her four sons, born in Ger- many, are dual nationals, having acquired American citizenship under §301 (a)(7) of the 1952 Act. The American citizenship of the other two turns on this case. In 1959 the United States denied her a passport, the State Department certifying that she had lost her American citizenship under § 352 (a)(1), quoted above. Appellant sued for a declaratory judgment that she still is an Ameri- can citizen. The District Court held against her, 218 F.

Cla rk , J., dissenting. 377 U. S.

a century. Mackenzie v. Hare, 239 U. S. 299 (1915). As applied to her I cannot say, as does the Court, that the command of Congress in § 352 (a)(1) is discriminatory and, therefore, violative of due process. Mackenzie de- cided just the contrary, upholding a statute which pro- vided that, although an American male did not suffer loss of citizenship during marriage to a foreign citizen, an American woman did. Here the appellant had statutory notice of the requirement; she voluntarily acted in dis- regard of it for eight years, intends to continue to do so, and in my view has therefore renounced her citizenship. There is nothing new about the practice of expatriating naturalized citizens who voluntarily return to their native lands to reside. It has a long-established and widely accepted history. Our concept of citizenship was inher- ited from England and, accordingly, was based on the principle that rights conferred by naturalization were sub- ject to the conditions reserved in the grant. See Calvin’s Case, 7 Co. Rep. 1 a, 77 Eng. Rep. 377 (1608). It was with this in mind that the Founders incorporated Art. I, § 8, cl. 4, into our Constitution. This clause grants Con- gress the power “[t]o establish an uniform Rule of Nat- uralization . . . .” And, as Madison himself said, these words meant that the “Natl. Legislre. is to have the right of regulating naturalization, and can by virtue thereof fix different periods of residence as conditions of enjoying different privileges of Citizenship . . . .” II Farrand, The Records of the Federal Convention of 1787, 235 (1911). This was confirmed during the debate in the First Con- gress on the first naturalization bill when Alexander White of Virginia suggested that if the residence require- ment were stricken, “another clause ought to be added, depriving [naturalized] persons of the privilege of citizen- ship, who left the country and staid abroad for a given

native lands. In 1868 the Bancroft treaty was nego- tiated with the North German Confederation. It pro- vided that each country would recognize naturalization of its native-born citizens by the other country. It fur- ther provided that “[i]f a German naturalized in America renews his residence in North Germany, without the intent to return to America, he shall be held to have re- nounced his naturalization . . . [and] [t]he intent not to return may be held to exist when the person nat- uralized in the one country resides more than two years in the other country.” 15 Stat. 615, 616-617. The United States has similar rights under existing treaties with 20 countries. All of these rights will be stricken by the decision today. In the late nineteenth century the Government adopted a practice of informing naturalized citizens residing in their native lands without intent to return that they had expatriated themselves. The doctrine underlying this procedure has since been followed on several occasions by commissions arbitrating the claims of American citizens against foreign governments. See III Moore, History and Digest of International Arbitrations 2562-2572, 2579-2581 (1898). As early as 1863 President Lincoln had suggested to Congress that it “might be advisable to fix a limit beyond which no citizen of the United States residing abroad may claim the interposition of his Government.” 7 Messages and Papers of the Presidents 3382 (Richardson ed. 1897). However, no legislation was enacted in the nineteenth century. In 1906, at the request of Congress, Secretary of State Elihu Root appointed a “citizenship board” to consider this and other related matters. The Board’s report stated: “Expressed renunciation of American citizenship is, however, extremely rare; but the class of Ameri- cans who separate themselves from the United States

decision. It is estimated that several thousand of these American expatriates reside in iron curtain countries alone. Hearings before the Subcommittee on Constitu- tional Rights of the Senate Committee on the Judiciary on S. Res. 49, 85th Cong., 1st Sess., 133. The protection of American citizens abroad has always been a most sensi- tive matter and continues to be so today. This is espe- cially true in Belgium, Greece, France, Iran, Israel, Switzerland and Turkey, because of their refusal to recog- nize the expatriation of their nationals who acquire American citizenship. The dissension that springs up in some of these areas adds immeasurably to the difficulty. Nor is the United States alone in making residence abroad cause for expatriation. Although the number of years of foreign residence varies from 2 to 10 years, 29 countries, including the United Kingdom and 7 Commonwealth countries, expatriate naturalized citizens residing abroad. Only four—Czechoslovakia, Poland, Afghanistan, and Yugoslavia-—apply expatriation to both native-born and naturalized citizens. Even the United Nations sanctions different treatment for naturalized and native-born citizens; Article 7 of the United Nations Con- vention on the Reduction of Statelessness provides that naturalized citizens who reside abroad for seven years may be expatriated unless they declare their intent to retain citizenship. The decisions of this Court have consistently approved the power of Congress to enact statutes similar to the one here stricken down. Beginning with Mackenzie v. Hare, supra, where the Court sustained a statute suspending during coverture the citizenship of a native-born Amer- ican woman who married a foreigner, the Court has in- variably upheld expatriation when there is a concurrence on the part of the citizen. In Mackenzie exactly the

also elements of an allegiance to another country in some measure, at least, inconsistent with American citizenship.” At 61. The present case certainly meets this test. Appellant’s prolonged residence in her former homeland, the alle- giance her husband and children owe to it, and her inten- tion not to return to the United States all show some measure of allegiance to Germany. At the very least, these factors show much less than “unswerving allegiance to the United States” and are “inconsistent with Ameri- can citizenship.” Indeed, in this respect the instant case is much stronger than Mackenzie, supra. The Court bases its decision on the fact that § 352 (a)(1) applies only to naturalized, not native-born, citi- zens. It says this results in a discrimination in violation of the Due Process Clause of the Fifth Amendment. I think that in so doing the Court overspeaks itself. If Congress has the power to expatriate all citizens, as the Court’s position implies, it would certainly have like power to enact a more narrowly confined statute aimed only at those citizens whose presence in their native home- lands can embroil the United States in conflict with such countries. As the history shows, the naturalized citizen who returns to his homeland is often the cause of the difficulties. This fact is recognized by the policy of this country and of 25 others and by a United Nations Con- vention as well. Through § 352 (a)(1), Congress has restricted its remedy to correction of the precise situations which have caused the problem. In adopting the classi- fication “naturalized citizen” has the Congress acted with reason? Many times this Court has upheld classifica- tions of more significance. Hirabayashi v. United States, 320 U. S. 81 (1943) (curfew imposed on persons of Japa- nese ancestry, regardless of citizenship, in military areas during war); Heim v. McCall, 239 U. S. 175 (1915) (aliens not employable on public works projects); Ter-

Cla rk , J., dissenting. 377U.S.

was held to constitute punishment without a criminal trial. The majority here indicates that a reservation made by Mr . Justi ce Stew art in his dissent in that case supports its present view. I think not. Indeed, my Brother Stewart ’s conclusion that our cases “upholding involuntary denationalization all involved conduct in- consistent with undiluted allegiance to this country,” at 214, fits this case like a glove. Here appellant has been away from the country for 10 years, has married a foreign citizen, has continuously lived with him in her native land for eight years, has borne four sons who are German nationals, and admits that she has no intention to return to this country. She wishes to retain her citizenship on a standby basis for her own benefit in the event of trouble. There is no constitutional necessity for Congress to accede to her wish. I dissent.