Today, as the nation debates serious matters such as how best to address the ISIS and how best to reform NSA surveillance authorities, Senator Ted Cruz will reportedly seek unanimous consent to enact the Expatriate Terrorists Act, a useless piece of legislation that would serve no good purpose, and would raise serious constitutional questions. In my capacity as co-chair of the Constitution Project’s Liberty and Security Committee, I sent a letter to the Senate today to urge members to oppose this ill-advised sport. If enacted, it would not lead to the expatriation of a single citizen, would not make Americans more safe, would raise serious constitutional questions, and would achieve no more than provide Senator Cruz an empty symbolic public relations hit.
The ETA would amend 8 U.S.C. § 1481(a), which sets out limited circumstances under which U.S. citizens can be denaturalized or expatriated. The bill would add the following to the short list of predicate acts that can result in loss of citizenship: 1) taking an oath of allegiance to a foreign terrorist organization; 2) joining a foreign terrorist organization’s armed forces while they are fighting the United States; and 3) “becoming a member of, or providing training or material assistance to,” a foreign terrorist organization that the person knows or has reason to know will engage in hostilities or terrorism against the U.S.
The reason this bill would serve no purpose is that the Supreme Court has long ruled that citizenship is a constitutional right. Therefore, like all other constitutional rights, it cannot be taken away from individuals against their will under any circumstances. We cannot, as a constitutional matter, strip citizenship from people convicted of treason, much less people who do nothing more than affiliate in some unspecified way with a group we have labeled terrorist, as Cruz’s bill attempts to do.
Like any constitutional right, citizenship can be waived. Citizens are entitled, of their own free will, to renounce American citizenship. But the Constitution requires that before anyone loses his citizenship, the government must establish that the individual knowingly, voluntarily, and intentionally relinquished his right – just as courts must establish that an individual knowingly, voluntarily, and intentionally waived his trial rights before accepting a guilty plea.
Before the Court declared citizenship a constitutional right, one could lose one’s citizenship by committing an expatriating act – such as joining another nation’s army. But after Afroyim v. Rusk, 187 U.S. 253 (1967), citizenship is a constitutional right, and no conduct, no matter how venal, can lead to expatriation – unless an individual knowingly, voluntarily, and intentionally takes that act for the express purpose of renouncing his American citizenship. And if one wants to renounce one’s citizenship, there’s a much simpler way to do so – go to any US embassy or consul, and fill out a form explaining that you are choosing of your own free will, with full awareness of the consequences, to give up your citizenship. Short of such evidence, however, the government simply cannot take away citizenship. No one has been expatriated against his will, no matter how bad his actions, since Afroyim.
So Senator Cruz’s bill will not lead to a single expatriation, except in the unlikely event that an individual wants to be expatriated. Hundreds of Americans have been convicted since 9/11 of some sort of material support to terrorist groups – the law is extraordinarily broad, and includes, according to the government, any sort of assistance whatsoever – even filing an amicus brief on behalf of such a group in the Supreme Court. But not a single individual so convicted has said that they were seeking to renounce their citizenship by offering their support to the organization in question.
Moreover, the bill raises serious constitutional questions. It makes the provision of “training” and “material assistance” potentially expatriating acts, without attempting to define those terms. Yet a federal appeals court held that similar provisions in the criminal “material support” statute were unconstitutionally vague, until Congress enacted specific definitions of the terms. Cruz offers no definition, and thereby creates the risk that constitutionally protected activity will be chilled.
The bottom line, though, is that this bill serves no good purpose. Just as one could not strip an accused criminal of his rights to a jury trial against his will, or strip a member of a church of his religious freedom against his will, so Congress cannot strip citizens of their citizenship against their will. If Senator Cruz were to consult the Constitution, he would see that his bill would serve no purpose. I am hoping other Senators will consult their Constitution, even if Senator Cruz happens to have overlooked his.