Yale Law Journal Forum: Citizenship, Passports, and the Legal Identity of Americans

For citizenship legal and policy wonks, a lengthy article on US practices in relation to citizenship and passport revocation. Current US approach is to revoke passports (overly so, the author argues) while US citizenship has been largely untouchable since the 1967 Afroyim v, Rusk case:

Yet Afroyim has reversed this classical conception of sovereignty. In his majority opinion, Justice Black—after having conceded that all nations possess an implied attribute of sovereignty—stated that “[o]ther 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.” It is on the basis of the sovereignty of the citizen—a sovereignty limited to the status of citizenship itself and to certain privileges and immunities stemming from it—that American citizenship has become absolutely secured. However, since Afroyim, the Supreme Court has not ruled on a case that would allow the Justices to bring the privileges and immunities of the U.S. citizen up to date with this new understanding of citizenship. Is it not time for the Court to read the Privileges or Immunities Clause and the Slaughter-House jurisprudence in the spirit of Afroyim—i.e., to declare as an absolute right the possession by all Americans abroad of a document attesting to their legal identity, a right to which the executive and legislative powers must defer?

When the power to naturalize was transferred by the Immigration Act of 1990 from the courts to the Attorney General, another provision of the same Act transferred to the Attorney General the power “to correct, reopen, alter, modify, or vacate an order naturalizing the person.” But in 2000, in Gorbach v. Reno, the Ninth Circuit affirmed the exclusive statutory competence of the courts to revoke citizenship. Following this decision, the Department of Homeland Security has not attempted to resume the use of administrative denaturalization.73 Since 2001, only several dozen naturalized Americans have lost their citizenship, through judicial proceedings, largely because they committed different kinds of fraud during the naturalization process. This small number is in part explained by Kungys v. United States, in which the Court refused to uphold the denaturalization of Juozas Kungys because the government had not shown that his misrepresentation concerning the date and place of his birth were facts that, if known, would have warranted denial of citizenship.

The Yale Law Journal – Forum: Citizenship, Passports, and the Legal Identity of Americans: Edward Snowden and Others Have a Case in the Courts.

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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