← What Trump Can Teach Us About Con Law
What Trump Can Teach Us About Con Law
Who Gets To Be a Citizen?
00:48:58
The Supreme Court narrowly upheld birthright citizenship in the 5-4 decision of Trump v. Barbara. But the debate over who is granted citizenship — and who can be stripped of it — is far from over.
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Roman Mars
It is Thursday, July 9th at 2:30pm what are we going to be talking about?
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Elizabeth Jo
All right, so, Roman, today, let's start with Japanese internment during World War II. Okay, so in February of 1942, President Roosevelt authorized the establishment of these internment camps when he signed Executive Order 9066 on February 19, 1942. And as a result of Roosevelt's order, about 120,000 people, including families with children, were forcibly moved to one of 10 relocation centers built by the War Relocation Authority and run by the military. The only basis for their detention was their race. The government brought no charges against them, and it was impossible to appeal your detention. And most of the internees were American citizens. In 1943, the War Relocation Authority began to administer a loyalty questionnaire to adult prisoners in the internment camps. One question asked the internees if they'd be willing to join the military. But Another question, question 28, asked a very specific question about loyalty to the United States. Here's what it asks. Roman, why don't you read it?
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Roman Mars
Okay. Will you swear unqualified allegiance to the United States of America and faithfully defend the United States from any or all attack by foreign or domestic forces and forswear any form of allegiance or obedience to the Japanese Emperor or any other foreign government, power or organization.
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Elizabeth Jo
Now, many internees found the question insulting and humiliating, and others worried that it might have been a trick question. And still others worried whether inconsistent answers inside of a family might break up a family at the camps? Now, most of those who answered no to the loyalty question found themselves transferred to the relocation camp at Tule Lake in a remote part of Northern California. And under the renunciation act of 1944, Japanese American citizens who answered no to the loyalty question could choose to give up their American citizenship. They were required to put into writing that I hereby formally renounce my United States nationality and all of its rights and privileges, and abjure and renounce all allegiance to the United States of America in accordance with section 401 of the Nationality act of 1940. Over 5,000 Japanese Americans renounced their citizenship. Most of them were from Tule Lake, and it quickly became clear that many applicants renounced their citizenship out of fear, pressure, or confusion. Here's an example provided by Professor Eric Muller, an expert on Japanese American internment. Tetsudo Tanaka was born a US citizen in 1911, and in 1942, he was taken into custody and sent to a relocation center in Utah. Tetsuda was then given the loyalty questionnaire. He said no to question 28, the one that asked him for unqualified allegiance to the United States. He then renounced his citizenship and was sent to Tule Lake. At Tule Lake, Tatsudo met Kimiko. She was also an American citizen. Like Tatsudo, she had answered no to the allegiance question and then renounced her citizenship. Tetsudo and Kimiko eventually married and then were transferred together to another detention center at Crystal City in Texas. Their son Frank was born at the facility, and a month later, the three were sent west so they could board a ship leaving San Francisco. The ship's manifest lists the family members. Tetsudo and Kimiko are identified as citizens of Japan. Frank is recorded as a US Citizen. Frank would later grow up to become a chemist at a federal agency in the United States. The loyalty questionnaire, the answers given by Tetsudo and Kimiko Tanaka, and the response of the United States government all raised the same questions. Who is allowed to be a citizen? Who gets to be an American this term? The Supreme Court provided one answer, but not an answer that puts the matter to rest. What happened? Time to find out.
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Roman Mars
Let's do it. This is what Trump can teach us about Con Law, an ongoing series of indeterminate length and sporadic release, where we look at the intricacies of birthright citizenship and naturalization. Who is granted citizenship and who can be stripped of it and use them to examine our Constitution like we never have before? Our music is from Doomtree Records. Our professor and neighbor is Elizabeth Jo, and I'm your fellow student and host, Roman Mars. Okay, so let's. Let's start with some definitions. What exactly is birthright citizenship?
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Elizabeth Jo
Okay, so the idea of birthright citizenship means that citizenship automatically comes from the fact that you are born within the physical territory of the United States. You don't need anything else, and it doesn't turn on the status of yourself or anyone in your family. And the main takeaway of Trump versus Barbara, the citizenship case, is very easy. The Constitution does guarantee birthright citizenship, period. But there's so much more to this case that that one observation is Just not enough, especially since it represents a defeat for the Trump administration.
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Roman Mars
I mean, is birthright citizenship something that is unique to the United States?
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Elizabeth Jo
Well, it's not unique, but it's not the most common way people become citizens around the world. So on the numbers, most countries around the world do not offer birthright citizenship. Most countries determine a baby's citizenship by the status of the parents. So that means at least one or sometimes both parents have to be citizens of that country in order for the baby to also have citizenship. But in at least 59 countries, most of which are in north and South America, at least some babies can become citizens simply by being born within the physical territory of the country. Remember, these are just policies about birthright citizenship. The main difference in the United States is the citizenship clause of the 14th Amendment to the Constitution. So, Roman, maybe you could read it.
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Roman Mars
Sure. All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the states in which they reside.
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Elizabeth Jo
Okay, so it's, again, a pretty short and somewhat vague part of the Constitution.
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Roman Mars
Is it vague? That seems pretty straightforward to me. Why is that considered vague?
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Elizabeth Jo
Well, actually, that's a good point, because you could say, well, all persons mean everyone, but it certainly wasn't meant at the time to include everyone. So there's some vagueness there, and there's more to the clause than that. But let's get to that in a moment.
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LinkedIn Advertiser
Okay.
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Elizabeth Jo
Okay, so let's talk about the historically specific origins of why we have a citizenship clause in the first place.
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LinkedIn Advertiser
Right.
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Elizabeth Jo
The 14th Amendment was ratified in 1868, and the original Constitution didn't actually define what it meant to be a United States citizen. So what was left was that the 14th amendment, until it was ratified citizenship in the United States was understood against the backdrop of English legal tradition, or what we call English common law. And English common law recognized a legal doctrine called jus soli, or the right of the soil. And that simply means that a person's citizenship at birth is determined by where you are born within a physical territory.
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Roman Mars
Okay.
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Elizabeth Jo
The other choice would be the jus sanguinis, or the right of the blood, which means your citizenship is determined by the citizenship of your parents. So one right of the soil, the other one right of the blood.
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Roman Mars
Got it.
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Elizabeth Jo
So in England, the English common law doctrine of use solely extended to pretty much everyone, with just a few narrow exceptions, including the children of foreign diplomats and of occupying foreign armies. And even before the passage of the 14th Amendment, the Supreme Court often decided cases that referred to the idea of use, solace, or birthright citizenship. So before we even had a citizenship clause, American courts were not writing against a blank slate. We had this very old English common law tradition that referred to this idea that being born in a place gave rise to your citizenship, plain and simple.
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Roman Mars
Got it.
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Elizabeth Jo
So then you get to the pretty infamous case in 1857 of Dred Scott v. Sanford. And in Dred Scott, the United States Supreme Court decided that Dred Scott and no other person of African ancestry could be considered a United States citizen. Dred Scott had said that, look, I am a former enslaved person. I should be considered a citizen of the United States. And the Supreme Court said no. Now, that is a pretty dramatic decision to say that an entire class of persons in the United States cannot ever be United States citizens. All of this changes with the passage of the 14th Amendment, which guarantees, as you pointed out, all persons born or naturalized in the United States are to be considered American citizens. So in this sense, the 14th Amendment is a constitutional rejection of the Supreme Court's decision in Dred Scott.
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Roman Mars
So the 14th amendment is ratified and comes about as a response to slavery. All these slaves had just been freed. This is part of the Reconstruction Amendments. And they're trying to figure out how to classify the citizenship of the formerly enslaved. But at the time, did everyone think that this only applied to them or that it automatically had broader implications?
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Elizabeth Jo
Well, the citizenship clause does both things at once. Right? You're right to say, look, isn't this just about black Americans? In one sense, yes, because the citizenship clause is meant to address Dred Scott versus Sanford, so that that case is essentially overruled through constitutional amendment. But you'll also Notice that the 14th Amendment does not limit itself by saying that only black Americans are to be addressed by the citizenship clause. It refers very broadly to all persons. And second, if we look at the historical records of the debates around the 14th amendment, we know that members of Congress understood that this very broad language that was being proposed for the citizenship clause would lead to birthright citizenship of children born to parents from other countries, like the very large Chinese population in California at that time. So Congress was not unaware when they were debating this that, look, this means much more than responding simply to the Dred Scott decision.
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Roman Mars
And was it clear when it was passed that this would apply broadly to all persons, even though it says all persons?
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Elizabeth Jo
Yeah, I mean, I think it was. And actually, the best evidence of the expansive interpretation of the citizenship Clause was the 1898 case of United States vs. Wong Kim Ark. And Wong Kim Ark was a man born in San Francisco in 1873, and he continued to live there as an adult. His parents were Chinese citizens. They were living legally in the United States, but they weren't citizens. And why not? Because they actually could not become citizens. Federal law did not permit them to become citizens in the United States, and so they moved back to China in 1890. So as an adult child would do. Wong Kim Ark visited his parents in China in 1895. But when he returned, an American customs agent denied him entry. And the reason why was that the customs agent said that Wong Kim Ark was not an American citizen. And if he wasn't considered an American, he could be denied entry under the 1882 Chinese Exclusion Act. This was a federal law that basically imposed a total ban on Chinese immigration into the United States. And his case was ultimately heard by the Supreme Court.
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Roman Mars
So how could the government claim that he wasn't a US Citizen if he was born in San Francisco?
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Elizabeth Jo
Right. So you would think that the citizenship clause would make it very clear that he was a citizen. But let's go back to the clause itself. The one that you said was pretty obvious. Right?
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Roman Mars
Okay.
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Elizabeth Jo
Remember, it says that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. Now, most people think of the birthright citizenship, right. As you're born here, and that's it.
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Roman Mars
Right.
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Elizabeth Jo
But what does subject to the jurisdiction thereof mean? In the Wong Kim Ark case, the government argued that subject to the jurisdiction thereof didn't refer just to being born in the United States. It was more like demonstrating some kind of political allegiance to the United States, which they argued, well, maybe he doesn't have. But in 1898, the Supreme Court rejected that argument. Instead, it decided that Wong Kim, Arkansas was a citizen. Why? Because he had become automatically a citizen when he was born in California.
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Roman Mars
Okay.
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Elizabeth Jo
And the Supreme Court based its reasoning on the doctrine of use solely. Everyone born in the United States is a citizen, subject to the narrow exceptions I've already mentioned. And just one more. Native Americans. Actually, believe it or not, Native Americans are excluded from the citizenship clause. They are American citizens today. But that's because of the Indian Citizenship act of 1924, which is an act of Congress. So the Supreme Court's view in Wong Kim Arc has been the prevailing, dominant, conventional, and what everybody thought was kind of the settled view of the citizenship clause for more than a century. There have long been legal advocates calling for a different interpretation of the citizenship clause, but they had all been Considered pretty fringe until Trump.
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Roman Mars
Yeah.
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Elizabeth Jo
Yeah. So citizenship, of course, as you know, has long been a target for Trump. Right. And this was even before he was president. He started questioning President Obama's citizenship. Remember, he was calling Obama, maybe he was born in Kenya, and therefore maybe he's constitutionally ineligible to be president. Well, this theme carried throughout into his second term. And on the very first day of Trump's second term, he issued Executive Order 14160, also known as Protecting the Meaning and Value of American Citizenship.
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Roman Mars
So what does that order do specifically?
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Elizabeth Jo
Well, the order says it's interpreting Two things, the 14th Amendment's citizenship clause and the provision of the federal Immigration and Nationality act that basically copies the language of the citizenship clause. So, like the citizenship clause, the relevant federal law says that a person born in the United States and subject to the jurisdiction thereof is a citizen of the United States and at birth. But Trump's order says that two types of people are not subject to the jurisdiction of the United States at birth. The first include children whose mothers are not lawfully in the United States and whose father is not a citizen or a lawful permanent resident. The second include children whose mothers are lawfully but temporarily in the United States at birth and whose fathers are not citizens or lawful permanent residents. So these two groups are essentially two very different targets for political conservatives.
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Roman Mars
Right.
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Elizabeth Jo
Like, the first one refers to the children of undocumented parents.
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Roman Mars
Yeah.
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Elizabeth Jo
And according to some estimates, There are about 250,000 babies born each year in the United States to undocumented parents. They would be excluded under Trump's order. The second group refers to very broadly babies born to mothers who are here lawfully but temporarily, like if you a tourist or you're on a student visa. But it would also include what's been called birth tourism, this idea that there's some unknown number of people who intentionally come to the United States for the sole purpose of giving birth within the territorial United States so their children can be citizens. Now, there's no official tally, which all by itself suggests that it's not an emergency.
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Roman Mars
Yeah.
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Elizabeth Jo
But some estimates put the number at about 20,000 babies born that way per year. But again, that's a pretty small number of births.
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Roman Mars
So, wait, there's documented evidence that there's 20,000 people who come here with the intention of giving birth just so they could take advantage of the 14th Amendment?
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Elizabeth Jo
Well, no, there's estimate. There's an estimate. So the government doesn't keep any numbers on this.
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Roman Mars
Okay. Okay.
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Elizabeth Jo
So Trump's order was pretty quickly challenged by immigrant and civil rights groups in a number of different lawsuits. One of these was a class action lawsuit filed in New Hampshire called Trump v. Barbara. And it's this case that the Supreme Court accepted for review.
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Roman Mars
Okay, who's Barbara?
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Elizabeth Jo
Oh, it's a pseudonym, actually, for one of the plaintiffs.
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Roman Mars
So what is the government's argument for Trump's order?
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Elizabeth Jo
Well, the government made a couple of different arguments. First, they argued that the only real purpose of the 14th Amendment was to grant citizenship to freed slaves and their children, not to the children of temporarily present aliens or illegal aliens. Now, under federal law, alien just means non citizens. And then you have this big elephant in the room, and that's the Wong Kim Ark decision, right?
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Roman Mars
Yeah, yeah.
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Elizabeth Jo
So the government says, look, that's not a case that means what you think it means. The government says, look, the clause refers to people who are subject to the jurisdiction of the United States. Those people can be considered citizens. And the government argued that this meant that citizenship is meant for children of citizens and children of non citizens who are domiciled in the United States. So domiciled here means something like making the United States your permanent home. And the government argued that a domiciled person has an allegiance. Remember the loyalty question.
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Roman Mars
Yeah, yeah.
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Elizabeth Jo
To the country where he or she lives. And so the Trump administration said, look, Wong Kim Ark's situation is different than the people who are covered by the Executive Order, because Wong Kim Ark's parents were lawfully within the United States at the time of his birth, and. And they were domiciled there. So that's the argument. But I think there are a couple of easy questions that come up right away. Like, is that really what subject to the jurisdiction means? I mean, aren't undocumented people, for instance, living in the United States? Aren't they subject to the jurisdiction of the United States? They have to follow the law. They can be sued civilly. They have to face criminal charges if criminal charges are pressed against them. And then as for this idea that, well, what's really important is domicile and allegiance when it comes to being a citizen of the United States. If these concepts are so pivotal, well, why aren't they listed in the citizenship clause itself?
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Roman Mars
Yeah, yeah.
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Elizabeth Jo
So there is an enormous amount that was at stake in the Executive Order. If the Supreme Court had upheld Trump's order, it would have upended more than a century of our understanding of what it means to be a citizen, and we would have created a new class of potentially stateless people.
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Roman Mars
Right, yeah.
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Elizabeth Jo
Not to mention, like, there is, like, an incredibly bizarre bureaucratic nightmare that would happen if anything like Trump's order of the world would have happened. Because if you think about it, Roman, like when a baby is born, there's no way that we record the citizenship of their parents. Right. You don't have a population wide record of who's a citizen. Everything is highly decentralized. Right. So babies born at the hospital and you get the birth certificate from like your city or your county and like that takes a while and then parents names are on it. But like you don't write your citizenship status on the birth certificate.
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Roman Mars
Right. And how do you get there? How would you get there with that? And also like, that they have allegiance, they swear allegiance, that the baby swears allegiance to the United States.
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Elizabeth Jo
Right, right. And like, and even if you had had to provide paperwork, what would that be? I mean, the most that an ordinary American would have would likely be just their own birth certificate, which itself would not have proof of citizenship. No, it would be a US Passport. Could be one. But like, I think about just half of Americans have a passport.
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Roman Mars
Totally. Yeah.
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Elizabeth Jo
But at the same time, that would be a nightmare because you'd have to create an entire new gigantic, massive bureaucracy to prove that somehow you're a citizen for the purposes of whatever citizenship. Yeah, but that didn't happen. We didn't have to worry about that because on June 30, the very last day of the Supreme Court's term, a majority decided that the Trump administration's interpretation of the citizenship clause was wrong. So let's talk about all 194 pages of the decision.
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Roman Mars
Okay, let's do that. Or at least one or two points. Right. So what was the key point for the majority besides like look like history or obvious text? Yeah, yeah, yeah, yeah.
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Elizabeth Jo
First, there's the. What's interesting about the majority is that it's a coalition, an unusual coalition of justices who decide Trump versus Barbara. It's the three so called liberal justices, Sotomayor, Kagan and Jackson, joined by Justice Barrett, who's a Trump appointee, remember, and Chief Justice Roberts. Chief Justice Roberts wrote the opinion in Trump v. Barbara. Now, as for how they came to their decision, remember the English common law rule of use, solely the right of the soil that influences the American idea of birthright citizenship. Now, Roberts essentially says in the opinion that American constitutional birthright citizenship comes from this idea. Automatic citizenship granted to children born in the United States with just a handful of narrow exceptions. That comes from English common law. And if we ever had blips or inconsistencies in American history. For instance, the denial of birthright citizenship to black Americans in the Dred Scott case. That was just an ugly departure from our traditions. And if there was ever a time during the 19th century when there was any uncertainty about birthright citizenship, so that's I think a reference to Wong Kim, Arkansas, then that uncertainty too is a reflection of the anti Chinese racism at the time. So the citizenship clause of the 14th Amendment is to be understood broadly, not narrowly. It means what it says. You get automatic citizenship upon birth. And essentially it applies to nearly everyone with just a few narrow exceptions. And the Wong Kim art case is to be understood broadly, not narrowly. Roberts says, look, the Supreme Court didn't decide that because of his parents allegiance or because of their domicile, he was not a citizen because of the legal status of his parents. He was born here in San Francisco and that's why he was a citizen.
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Roman Mars
Great.
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Elizabeth Jo
So the second part of the majority opinion that's interesting and or noteworthy is that Chief Justice Roberts has an interesting approach to how he writes the opinion. This was not a kind of hold your nose opinion. This isn't about just look, we have this tradition. I don't like it, but this is the way that the law compels us to come to this conclusion. Instead, citizenship, according to Roberts in Trump vs Barbara is what he says, the right to have rights to freely participate in our political community, which the Constitution gives to every free born person in this land. So in a way, Trump v. Barbara is an easy case for the majority because again, it simply seems to tell us that the citizenship clause means what it says. And it also has the virtue of what lawyers like to call a bright line rule. It's not a messy case by case determination. If you're a baby and you're born in the United States, you're a citizen. We don't have to have a go to court to figure that out.
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Roman Mars
Right. Okay, good. Okay.
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Elizabeth Jo
And then Justice Jackson writes a really powerful concurring opinion about American history and Reconstruction in particular. She says, look, the entire point of the citizenship clause and the post Civil War amendments was to create what she calls an anti caste, anti subordination reset for the nation, not a mere spot treatment for the dark stain of slavery. I didn't love the tide reference there, but I thought it was a pretty powerful moment. I mean, she does spend a lot of time talking about, it was understood even at the time of Reconstruction, that this was going to be much broader than simply addressing the Dred Scott decision.
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Roman Mars
Yeah, yeah, yeah. I Mean, I think as for me and for many people that I saw commenting on this decision, we were all kind of shocked that the decision was 5, 4. What should I think about that?
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Elizabeth Jo
Well, on the one hand, it's appalling. Right. It's appalling that the idea of constitutional birthright citizenship could have died with one vote, potentially with Justice Barrett. So that is pretty awful. Yeah. But if you take a closer look, I think you'll find something pretty interesting. The other justices opinions are more complicated than you might think. So first there is Justice Thomas's 91 page dissent. It's very long. He is joined by Justice Gorsuch. Now Thomas in his dissent, spends most of his time arguing that the citizenship clause is meant only to correct the wrongs of the Dred Scott decision. In other words, the 14th Amendment's guarantee of birthright citizenship is primarily intended for black Americans. It was not meant to protect, as he puts it, the children of foreign temporary visitors. Then there is Justice Alito's dissent. The real test is allegiance to the United States. The children of temporary visitors don't have that. So, Roman, you might notice that these three dissenters focus on the children of temporary visitors. There's a glaring omission here.
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Roman Mars
I mean, are they addressing undocumented people at all?
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Elizabeth Jo
Not really. And that's what's so curious. A lot of the political energy around the birthright citizenship issue has focused on the children of undocumented parents.
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Roman Mars
Yeah.
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Elizabeth Jo
But none of the dissents in the Trump v. Barbara case squarely make the case that the citizenship clause clearly and obviously excludes these children, the children of undocumented parents. So if you take Thomas's 91 page rant, I should say dissent about what subject to the jurisdiction means in the citizenship clause. He says, look, what matters is domicile, which means something like your residence or your home. And he says, so for temporary visitors, the United States isn't your home and so your children can't be citizens even if they're born in the United States. So he spends a lot of time on that. And then if you dig around in his dissent, he drops in one footnote. I would reserve for another day the question of whether the children of illegal aliens can be domiciled here. That's it. Justice Alito's dissent gets a little closer to the issue. He says what matters is allegiance to the United States. And his argument runs something like this. If you're born to parents who are citizens of another country and you're unlawfully in the United States, the other country might impose obligations on you, like serving in their military. So those people shouldn't acquire birthright citizenship in Alito's view. But his reasoning kind of suggests that if the other country doesn't impose obligations on you and you're born to undocumented parents, well, maybe you can be a birthright citizen. Then there's Justice Gorsuch, who had joined Justice Thomas's 91 page dissent, but then also decided to write his own short opinion. Gorsuch says plainly that he has doubts about whether birthright citizenship can be denied to the children of undocumented parents. Gorsuch puts it this way, is a child born here to parents who have long chosen to make this nation their permanent home, not a Citizen under the 14th Amendment, solely because his parents presence violates statutory law. So in other words, Gorsuch is saying, if their home isn't the United States, where is it?
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Roman Mars
Wow.
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Elizabeth Jo
And then finally, there's Justice Kavanaugh, who I haven't mentioned. No, he actually voted to reject Trump's order too. But in his view, it violated what Congress intended under the Immigration and Nationality Act. He avoids the constitutional question. And the most he can say about the group of children who are born to undocumented parents is, well, it's kind of complicated. So one way to think about all of these opinions is it's kind of a larger loss for Trump than you might think. So depending on your counting, at least eight justices are saying that children of undocumented parents either are, or in some circumstances could be American citizens. So the newspaper headlines about birthright citizenship lives by a one vote margin. That's kind of true, but it's also true that you don't have one resounding clear voice saying there are no circumstances in which children of undocumented parents can become citizens.
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Roman Mars
Okay, I can take some comfort in that, I suppose. So is that the end of this, or is there going to be more of these coming up?
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Elizabeth Jo
Well, on the day the Supreme Court issued its decision, Trump focused primarily on the birth tourism issue. And he posted on Truth Social, I would like to congratulate President Xi and the great country of China on their massive birthright citizenship win. And then Stephen Miller chimed in a few days later on X, here's what he said. If you believe a foreign government can sail a hospital ship to the edge of US territorial waters, deliver 100 babies to foreign moms, then promptly sail back to a foreign port, and that every one of those babies is American for life, you don't believe in nationhood at all. So I have questions about this hypothetical. I know that's a very strange project that a government would have to be embarking on or a group of people would have to be embarking on.
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Roman Mars
What a mental case.
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LinkedIn Advertiser
Yeah.
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Elizabeth Jo
And I remember Kavanaugh, the one justice who said, look, maybe Congress could do what Trump cannot. He's really giving a hint to Congress. Maybe you could try again and pass a law that denies birthright citizenship to some of these folks. So right after the Supreme Court decision, Trump suggested that on Truth Social. And House Speaker Mike Johnson has already said they'll consider a bill about it. Seems kind of unlikely, though, with the midterms approaching.
- [31:55]
Roman Mars
Yeah, yeah.
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- [32:32]
Elizabeth Jo
So I think Trump's order on birthright citizenship is just really one aspect of his attack on immigration in all kinds of ways. I think one easy prediction to make is that since birthright citizenship is now essentially settled by the Supreme Court, there's going to be some kind of hydraulic pressure on other executive branch tools to make all immigrants uncertain about their status. And one way of creating that uncertainty is the threat of denaturalization.
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Roman Mars
Okay, so actually, that is the question I had early on. I don't even know what naturalized means in the 14th Amendment, to tell you the truth. So what is denaturalized versus naturalized?
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Elizabeth Jo
So naturalization simply means you're a non citizen and you go through a formal process of applying to the United States so you can become a United States citizen. So, so a naturalized citizen and a birthright citizen, a native born citizen, are identical in every respect in terms of their rights and protections, except for one thing. The naturalized citizen cannot become President of the United States.
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Roman Mars
Oh, okay, so then what is denaturalization?
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Elizabeth Jo
Okay, so denaturalization is really just the opposite. You have a person who has become, through a formal process, a United States citizen, even though they began as a non citizen. But if they engage in some kind of conduct that qualifies them for denaturalization, they basically can undo their naturalization or they don't do it themselves. But the government then pursues a process of denaturalization.
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Roman Mars
Okay, so then how does a person become denaturalized?
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Elizabeth Jo
So I think it's useful to start out thinking about why the government ever seeks denaturalization.
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Roman Mars
Yeah, that's a good question.
- [34:14]
Elizabeth Jo
The American history of denaturalization, which is tied to the history of naturalization, is a pretty ugly one. It's one that's tied to open racial discrimination and political persecution. And until the middle of the 20th century, denaturalization was pretty common. The first denaturalization law was included in the Naturalization act of 1906. Now, you could become a naturalized citizen under that law if you fulfilled the requirements which are pretty similar to the ones that are in place today. You have to have been in the United States for a while. You have to have what's called good moral character, including attachment to the principles of the Constitution.
- [34:53]
Roman Mars
Okay.
- [34:54]
Elizabeth Jo
Now, Asian immigrants were not eligible to be naturalized at all, although they could be birthright citizens. That's why Wong Kim Art could be a citizen, but his Chinese born parents could not.
- [35:04]
Roman Mars
I see. Okay.
- [35:05]
Elizabeth Jo
And the 1906 law explicitly banned anarchists and polygamists from ever becoming citizens.
- [35:11]
Roman Mars
Okay.
- [35:12]
Elizabeth Jo
So under the act, as far as denaturalization was concerned, you could be denaturalized if you became a citizen through fraud or through some other illegal means.
- [35:22]
Roman Mars
Okay.
- [35:23]
Elizabeth Jo
And so the federal government could and did in fact, use naturalization and denaturalization for political purposes in the first half of the 20th century. So in 1919, I'm sure, Roman, you've heard of the anarchist activist Emma Goldman, right?
- [35:39]
Roman Mars
Oh, yeah, yeah, sure.
- [35:39]
LinkedIn Advertiser
Yeah.
- [35:40]
Elizabeth Jo
So she was denaturalized and deported.
- [35:43]
Roman Mars
Yeah.
- [35:44]
Elizabeth Jo
And how did that happen? Because the government found out that Goldman's former husband had misrepresented his age when he applied for citizenship. He was 17 when he was supposed to be 18. I mean, they were looking for a reason to get rid of her.
- [35:58]
Roman Mars
Yeah, yeah, sure.
- [35:59]
Elizabeth Jo
Now, under federal law at the time, a wife's citizenship was tied to her husband's. So when her husband lost his citizenship, she lost hers, and she was deported. In 1942, FDR's Attorney General Francis Biddle created a program to look for disloyalty among naturalized citizens. Biddle said that denaturalization could be what he called a most important weapon in dealing with organized, subversive and disloyal activities. And so the government started to target people like Nazi sympathizers for denaturalization.
- [36:33]
Roman Mars
Got it. Yeah.
- [36:34]
Elizabeth Jo
And then Congress then also expanded the ways that you could lose your citizenship The Naturalization act of 1940 allowed the government to try and strip you of your citizenship for doing things like voting in a foreign election. So it's not terribly surprising to learn that between 1907 and 1967, a lot of people were denaturalized. In fact, 22,000Americans were denaturalized during this time.
- [37:00]
Roman Mars
Wow.
- [37:01]
Elizabeth Jo
All of this essentially comes to a halt by the 1960s.
- [37:05]
Roman Mars
Okay, what happens then?
- [37:06]
Elizabeth Jo
Because the Supreme Court stepped in to provide protections for people who were facing the loss of their citizenship. And the important case Here is the 1967 case of Afrayem v. Rusk. So a man named Beis Afrayem was a naturalized citizen who voted in an Israeli election. So when he tried to renew his American passport, the State Department told him, we're not going to do that because you lost your citizenship. You voted in another country's election. The law at the time specified that committing some acts like that, voting in a foreign election, would strip you of your citizenship. The Supreme Court, in his challenge, declared this provision was beyond Congress's power. In the Afrayem case, the Supreme Court decided that an American citizen has a constitutional right to remain a citizen in unless he voluntarily gives up his citizenship. And that didn't apply to his case. What did the Supreme Court rely on in coming to their conclusion? The 1898 decision in wonky Mark, huh?
- [38:07]
Roman Mars
Okay, okay, okay.
- [38:09]
Elizabeth Jo
So in that case, the Supreme Court has said that Congress has the power to confer citizenship through naturalization, which is a power specified in the Constitution, but not the power to take it away. So in the Afroaim case, the U.S. supreme Court refers to the 14th Amendment's protection of citizens against the destruction of their citizenship. Congress could naturalize him, but they could not strip him of his citizenship in this way.
- [38:37]
Roman Mars
So if this goes out of fashion after the 1960s, what does that mean for the cause of denaturalization today?
- [38:44]
Elizabeth Jo
Well, today, the federal government can't use many of the reasons that it used to use in order to strip people of their citizenship. So the automatic reasons that were used prior to the 1960s, like voting in a foreign election or serving in a foreign military, those can't be applied anymore. You have to voluntarily say, I want to give up my citizenship. But there is one big exception.
- [39:09]
Roman Mars
Okay, what is that?
- [39:10]
Elizabeth Jo
In the Afrin case, the Supreme Court notes, well, of course, if you unlawfully obtained your naturalization in the first place, of course you can be denaturalized.
- [39:19]
Roman Mars
I see, I see.
- [39:20]
Elizabeth Jo
So the main takeaway from the Aframe case is that unless you voluntarily give up your citizenship, Congress can't take it away. And that's really the biggest impact. Between 1968 and 2013, fewer than 150 citizens were denaturalized. That's a small number. And of the cases that the government pursued, these tended to be naturalized citizens who were accused of hiding their participation in war crimes or genocide overseas. That kind of makes sense.
- [39:49]
Roman Mars
Yeah.
- [39:49]
Elizabeth Jo
And it happens so infrequently, Roman, that an expert on denaturalization said in 2013 that this isn't really even an issue anymore. People don't get denaturalized. And then came Trump.
- [40:01]
Roman Mars
Yeah.
- [40:02]
Elizabeth Jo
So during the first Trump administration, Attorney General Jeff Sessions said the Justice Department would aggressively pursue denaturalization to enforce the nation's immigration laws. And then a year after that, a bulletin published for federal prosecutors by the Justice Department said, denaturalization will play a prominent role in securing the integrity of our immigration system. In 2018, the US Citizenship and Immigration Services Agency announced that it would review take another look at the naturalization files of 700,000 citizens. The USCIS is the federal agency that's responsible for processing naturalization applications.
- [40:43]
Roman Mars
But is it still hard to denaturalize people?
- [40:46]
Elizabeth Jo
Well, the government certainly can't use any of the bases that we talked about. Before the 1960s, the Supreme Court's decisions here have made it much more difficult to strip people of their citizenship, but it's not impossible to denaturalize citizens. Okay, so after the Ephraim decision, the government can try to denaturalize a naturalized citizen because the naturalization process was either what the statute says is illegally procured or procured in concealment of a material fact or by willful misrepresentation. And a naturalized citizen can also be denaturalized if they were never eligible in the first place.
- [41:26]
Roman Mars
Wait a minute. So how does that happen?
- [41:28]
Elizabeth Jo
Well, the federal government has to go to court and prove its denaturalization case. It can do this by a civil or a criminal proceeding, but it's usually done through a civil proceeding. So basically, the idea of denaturalization is if the government can show that you essentially lied or misrepresented something in your application, then you were never allowed to become a citizen in the first place, and that's why they're going to take it away.
- [41:51]
Roman Mars
Right. Okay. Yeah.
- [41:52]
Elizabeth Jo
So you might think, well, you know, if you're an honest person, there's nothing to worry about. Right? Yeah, well, that's true. But as for misrepresentation, I'll give you one question from the naturalization questionnaire today. It's question 15A on form N400. So you ready for it?
- [42:10]
Roman Mars
Yeah, sure.
- [42:11]
LinkedIn Advertiser
Okay.
- [42:11]
Elizabeth Jo
How would you answer this, Raman? Have you ever committed, assisted in committing or attempted to commit a crime or offense for which you were not arrested?
- [42:28]
Roman Mars
You mean like this week or ever?
- [42:31]
Elizabeth Jo
Ever?
- [42:33]
Roman Mars
Oh, my God. Yeah. That's one that, you know what you should answer. But there's, obviously there's. The truth of the matter is, if you've speeded on the highway, does that count?
- [42:44]
Elizabeth Jo
Well, that's a great example because it actually came up in an oral argument in a Supreme Court case from a while ago. What about speeding? What is an offense that you should report? What about a parking ticket? What if the government found out that you drove 60 in a 55 mile an hour zone right before you were naturalized, but then you didn't spend say that on the form, could that be grounds to denaturalize you later? And the lawyer for the government in that case at the time said to the court, well, maybe.
- [43:18]
Roman Mars
Wow.
- [43:18]
Elizabeth Jo
Then there's the eligibility aspect. You're supposed to have shown good moral character for the five years before naturalization. Now, some things I think make a lot of sense, like if you've, if they know that you've committed murder, for example, you're not going to be able
- [43:32]
Roman Mars
to become a citizen or an anarchist with multiple wives.
- [43:36]
Elizabeth Jo
Well, at least that was historically true, for sure. But according to the policy manual of the federal government, some things qualify for not having good moral character. And they include things like being a habitual drunkard or committing adultery. Those are not crimes.
- [43:57]
Roman Mars
Right, right.
- [43:58]
Elizabeth Jo
So if the government wants to and does in fact prove that you did something and you should have reported it, even if you've never been charged or convicted of any offense, then this can still be a theoretical basis for denaturalization. And so what it tells you is there's an enormous amount of discretion that's been left to the executive branch about who it decides to target.
- [44:24]
Roman Mars
Yeah, right. Yeah, yeah.
- [44:27]
Elizabeth Jo
In June of 2025, just last year, the Trump administration said it would make denaturalization a priority. In December of 2025, the administration issued new guidance to the USCIS field offices. And they said, look, we want about 100 to 200 potential denaturalization cases per month for 2026. They've essentially established a quota. Find some denaturalization cases. So according to data that's been compiled by the nonpartisan organization Track, the Trump administration has dramatically increased their denaturalization cases filed in court this summer. They had been bringing less than one case per month since 2008. The federal government in general. But in May of 2026, 15 denaturalization cases were filed. And in the first half of June of 2026, for which there's data available, there were 18 denaturalization cases. So it's pretty clear that denaturalization, which was once declared virtually dead, has come back.
- [45:34]
Roman Mars
Wow. It seems that any legitimate crime that a person who is naturalized could have committed could just be dealt with in criminal court. They committed a crime. They are subject to the jurisdiction in the United States. They do the time or not. Why is denaturalization on the table?
- [45:55]
Elizabeth Jo
You know, of course, you're right. A citizen, naturalized or native born, can simply be prosecuted for a crime if they commit a crime or they're accused of a crime. This is really about a larger project of, number one, having the immigration patterns of the United States be very different than the way they've been. And I think the second thing is really putting uncertainty and fear in the hearts of people who are even legal immigrants. To think, I'm never quite sure whether my citizenship and what I thought was my permanent home here is really truly permanent. Denaturalization only happens for people who've come from somewhere else. Right. If you're a birthright citizen in the United States, you're not going to be denaturalized. You can't. Right. You'd have to voluntarily give up your citizenship. So this is a specific targeting of basically what it means to be an immigrant who wanted to become a citizen. You're never quite sure whether you could be targeted. And really the reason the cases have been so low historically, since the 1960s, is prior administrations simply didn't make it a priority. You know, we've got better stuff to do. We don't want to make people fearful when they haven't done much wrong. You know, we will save denaturalization for some pretty serious crimes and offenses. People who have participated in war crimes abroad, people have participated in genocide abroad. These are people who really don't belong in the United States. And particularly if they've lied about their participation in these offenses when they applied to become US Citizens. But to just have this wide ranging tool that's meant to basically, you know, inculcate fear into people is really. That's really. That's really the difference.
- [47:47]
Roman Mars
Yeah, yeah.
- [47:49]
Elizabeth Jo
So, Roman, I want to return for a moment to the Tanakas, the family who found themselves sent from the Tule Lake Internment Camp right after they had renounced their citizenship. The Tanakas were two of the more than 5,000 Japanese Americans who renounced their citizenship from from the internment camps during World War II. After it became pretty clear that many had renounced citizenship out of fear and confusion rather than actual disloyalty. A lawyer from San Francisco named Wayne Collins helped literally thousands of people file appeals to restore their citizenship. And of the 5,409 Japanese Americans who petitioned to have their citizenship restored, 4,978 were successful. The story of the Tanakas is recounted in an amicus brief filed by Professor Eric Mueller this past February for the birthright citizenship case. The decision in Trump versus Barbara may have settled the meaning of the citizenship clause, but I think it's pretty clear it does not end the debate over who gets to be called and remain an American.
- [48:58]
Roman Mars
Well, thank you so much for teaching us all about this. This has been really fascinating stuff.
- [49:02]
Elizabeth Jo
Thanks Roman.
- [49:10]
Roman Mars
This show is produced by Elizabeth Jo, Isabel angel and me, Roman Mars. It's mixed by Martin Gonzalez. Our executive producer is Kathy Tu. You can find us online@tromcon law.com all the music and what Trump can teach us about Con Law is provided by Doomtree Records, the Midwest hip hop collective. Find out more about Doomtree Records, get merch and learn about who's on tour@doomtree.net we are part of the Sirius XM podcast family.
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Elizabeth Jo
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