Walter Olson
“White House suggests stripping political adversary of citizenship” is quite the headline, but it’s now happened three times in just a few weeks.
On July 12, Donald Trump said he was giving “serious consideration” to revoking the US citizenship of perennial critic Rosie O’Donnell, who was born on Long Island. The comedian is exploring acquiring Irish citizenship through Ireland’s family heritage track, but dual Irish-US citizenship is a common thing held by plenty of people.
In general, courts will not treat someone as having renounced US citizenship unless they are shown to have done so voluntarily, a principle endorsed by all nine Supreme Court justices in Vance v. Terrazas (1980). Under the 1967 Supreme Court case of Afroyim v. Rusk, as well as relevant statute, as Eugene Volokh explains, there are very narrow circumstances in which courts might infer that someone has implicitly renounced his US citizenship, say by serving in the army of a foreign power at war with the United States. “Needling Donald Trump too much on TV,” O’Donnell’s apparent offense, is not one of the permissible grounds, and in its absence, Trump’s formal presidential powers against O’Donnell would seem to be limited to the capacity to cope and seethe.
Persons who have acquired US citizenship through naturalization, rather than by birth, can lose it in a second major way, by being found to have illegally procured naturalization or lied during the citizenship process.
This would presumably be the vehicle by which Trump would go after two other prominent figures who’ve drawn his ire lately. On July 1, around the height of his feud with Elon Musk, Trump floated the idea of deporting the South African-born entrepreneur. And when Rep. Andy Ogles, R‑TN, called for a federal investigation to determine whether naturalized American citizen Zohran Mamdani and New York City Democratic mayoral candidate should be denaturalized because of purported support for terrorism years earlier, White House Press Secretary Karoline Leavitt said the allegations, “if true… should be investigated.”
In either instance, it would be a traditional mode of proceeding to assemble evidence that the target had falsified qualifications for citizenship at the time of application, such as by concealing crimes or other relevant facts. As National Public Radio reported recently, the US Department of Justice has sought to step up denaturalizations, including weakening protections for the accused by using civil as opposed to criminal proceedings. In particular, the initiative from the Department of Justice lays out a number of offenses, such as federal grant fraud, that it intends to target, and then goes on to give US attorneys very broad discretion to pursue denaturalization based on almost any other claimed offense they may think is important.
Some Trump allies are keen to open up a different route for denaturalization, namely, offenses committed after obtaining citizenship. Aside from a few exceptions provided by statute, it seems unlikely that the courts would stand for denaturalization on this basis, although who can tell, given the rapid moves to challenge settled law on citizenship?
The turn of the Court against forced denaturalization from 1967 on might have drawn in part on the experience of World War II and the Cold War, in which revocation of citizenship was both a major tool of totalitarian regimes, on the one hand, and a perceived excess of anti-communist energies in the US, on the other. In a 1952 letter, Hannah Arendt wrote:
As long as mankind is nationally and territorially organized in states, a stateless person is not simply expelled from one country, native or adopted, but from all countries—none being obliged to receive and naturalize him—which means he is actually expelled from humanity. Deprivation of citizenship consequently could be counted among the crimes against humanity, and some of the worst recognized crimes in this category have in fact, and not incidentally, been preceded by mass expatriations. The state’s right of capital punishment in case of murder is minor compared with its right to denaturalization, for the criminal is judged according to the laws of the country, under which he possesses rights, and he is by no means put outside the pale of the law altogether.