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January 28, 2015

The Expatriate Terrorist Act's Patent Flaws

I wrote about the reintroduced Expatriate Terrorist Act over at National Review. Over there, I write about how the legislation is unconstitutional as proposed and unnecessary anyway. Here, I thought to point out that it's also completely illogical.

Click over and read the short piece so we're on the same page:

Representative Steve King and Senators Ted Cruz and Chuck Grassley have reintroduced the Expatriate Terrorist Act, a bill to strip U.S. citizenship from terrorists. The proposal sounds nice in theory, but it is also unconstitutional and unnecessary, the latest in a sad line of civil-liberties infringements justified by politicians trying to look tough in the war on terrorism. Even if the bill did not have these fatal infirmities, it would put the determination of who will retain their citizenship in the hands of unelected bureaucrats at the Departments of Justice, State, and Homeland Security. On that ground alone, all Americans should unite in opposition.

As I explained at National Review, to actually revoke someone's citizenship and stay within the bounds of the Fifth Amendment's due process clause and the Fourteenth Amendment's citizenship clause the government bears the burden to demonstrate (1) the expatriating act; and (2) that the person intended to relinquish their citizenship when they committed the expatriating act.

Under settled precedent, Congress may designate expatriating acts. The Expatriate Terrorist Act would add membership, training, oaths of allegiance, and material assistance to terrorist organizations to the existing list of expatriating acts. That's not, in itself, the problem with the bill.

The problem is that Sen. Cruz claims that the mere act would constitute an "affirmative renunciation" of citizenship such that the government would then not have to also demonstrate the intent to relinquish citizenship. Decades ago, the Supreme Court has held that Congress may not simply do away with the intent requirement in this manner--and for good reason: it would leave the citizenship of all Americans to congressional whim. Fail to pay your taxes? Commit a crime? Without the intent requirement, there's nothing to stop Congress from defining either as expatriating offenses except Congress' own forbearance.

Obviously, such a regime is inconsistent with the Constitution and, indeed, the Supreme Court has explained, "the intent of the Fourteenth Amendment, among other things, was to define citizenship; . . . that definition cannot coexist with a congressional power to specify acts that work a renunciation of citizenship even absent an intent to renounce."

Thus, for implementation of the Expatriate Terrorist Act to be constitutional, the government would still have to show not only that a citizen-terrorist committed the expatriating act but also the intent to relinquish.

Here's the illogical part: a citizen-terrorist who intends to return to the U.S. to wage terrorism will never have the intent to relinquish citizenship. His citizenship is his ticket back into this country to wage war. Of course he's not going to intend to give it up. His citizenship is essential to his plan to come back to this country and kill us! So this bill is not practical at all (aside from being unconstitutional and unnecessary, I mean).

I'm sympathetic to the idea of expatriating terrorists. Who wouldn't be? But this legislation is purely symbolic. There's no reason to expect the Expatriate Terrorist Act to actually increase expatriations. There are better ways to stop returning citizen-terrorists.


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posted by Gabriel Malor at 09:22 AM

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