146. Denaturalization and Expatriation

There is no lawful way to "deport" U.S. citizens. And although citizenship can be revoked, any attempt by the government would run into significant statutory, constitutional, and practical obstacles.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. We also just launched “First One,” the weekly bonus audio companion to the newsletter for paid subscribers, with the latest episode dropping last night. If you’re enjoying the newsletter, I hope that you’ll consider sharing it (and subscribing if you don’t already):

I was impelled to write about this week’s topic by news reports of the Trump administration apparently “deporting” a small number of U.S. citizens (including children?!?). There is, of course, no legal mechanism for “deporting” a U.S. citizen; by law, citizens aren’t subject to what, to be legally accurate, is now called “removal.”¹ Indeed, this gets directly to some of the many stakes of the birthright citizenship cases—in which the Supreme Court will hear oral argument, at least on the scope of the three nationwide injunctions against Trump’s attempts to narrow it, on May 15. But folks might be less familiar with the (narrow) legal avenues that are available to revoke U.S. citizenship: denaturalization (for those who became U.S. citizens at some point after their birth); and expatriation (for those who were “natural-born citizens”).

For good reasons, it is difficult to denaturalize a U.S. citizen and even harder to expatriate one. As this week’s “Long Read” documents, Congress has provided for only a handful of circumstances in which the executive branch is empowered to pursue such a move; and the Supreme Court has recognized meaningful constitutional limits (and an entitlement to meaningful judicial review) even in those cases. As we’re seeing so often with the current administration, there may well be a legal avenue for at least some of what it appears to want to accomplish, but that legal avenue has too much, you know, law, interposing both substantive limits and procedural requirements between the President and his policy preferences.

But first, the news.

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On the Docket

It was another busy week for the Supreme Court, albeit one that generated fewer national headlines than the previous one.

Monday’s regular Order List added one case to the argument docket for the October 2025 Term: USPS v. Konan, in which the question presented is “whether a plaintiff’s claim that she and her tenants did not receive mail because Postal Service employees intentionally did not deliver it to a designated address arises out of ‘the loss’ or ‘miscarriage’ of letters or postal matter,” and thus falls within an exception to the government’s liability under the Federal Tort Claims Act. (The Fifth Circuit said no.)

On Tuesday, the Court handed down its lone ruling of the week in an argued case: Monsalvo Velázquez v. Bondi. Although the Court split 5-4 (with Justice Gorsuch and Chief Justice Roberts joining the three Democratic appointees in the majority), the ruling turns on two very technical questions relating to a small subset of immigration proceedings—one about whether a specific 60-day deadline for a particular type of relief can end on a Sunday (the majority said no); and one about whether courts of appeals have jurisdiction to say so (the majority said yes).

Wednesday brought with it the 160th—and last—oral argument in the exceptionally distinguished career of Deputy Solicitor General Ed Kneedler. Not only did Chief Justice Roberts take a moment to note the occasion (and the fact that Kneedler holds the “modern” record for appearances before the Court), but he led the justices (and the Courtroom) in a standing ovation for Kneedler. Talk about something you don’t see everyday (or, really, ever). The special recognition was well-deserved.

Off the bench, the Court handed down two rulings on emergency applications—neither of which came in a Trump-related case. On Tuesday, the Court denied Ohio’s application for emergency relief in a case in which the state Attorney General had attempted to keep off of the next election ballot a voter-led initiative to abolish qualified immunity. That effort can now go forward—over public but unexplained dissents from Justices Thomas, Alito, and Kavanaugh. And on Wednesday, the Court cleared the way, over no public dissents, for Texas’s execution of Moises Mendoza

We also received the Court’s submission to Congress of proposed changes to the Federal Rules of Appellate, Bankruptcy, and Civil Procedure, respectively—none of which look that newsworthy to anyone outside those specific practitioner groups. As I explained in a post from last April, these rules will go into effect on December 1, 2025—unless Congress disavows them between now and then. (By statute, the annual deadline to submit proposed rules to Congress is May 1, hence why this tends to happen in April.)

Turning to this week, it’s the last scheduled week of oral argument for the entire term, although we already have the extra argument in the birthright citizenship cases on May 15, and I wouldn’t bet against another late-breaking oral argument between now and October 6. We also expect a regular Order List at 9:30 this morning, and decisions in one or more cases argued earlier this term starting at 10:00 ET tomorrow.

And on the emergency applications front, there are at least three major applications on which we’re still waiting to hear from the Court: The Northern District of Texas Alien Enemy Act case (now captioned W.M.M. v. Trump), in which the temporary April 19 order is still in effect; the Wilcox case (about whether statutes protecting members of the NLRB and MSPB from being fired without cause are unconstitutional); and the Trump administration’s newest emergency application (its eleventh)—seeking to put back into effect its ban on military service by transgender individuals, in which the plaintiffs’ response is due Thursday. The first two, at least, are ripe for a ruling sometime this week. And who knows what other late-breaking emergencies might reach the justices before next Monday.

Finally, on a more personal note, I’ll be hosting a Substack Live at 3:00 p.m. ET today (Monday, April 28) with Adam Klasfeld, an awesome journalist covering all-things federal courts for the brand-new All Rise News. Folks should get an e-mail or push notification when we get started, and we’ll post the archived video afterwards.

And for D.C.-area readers, tomorrow (Tuesday) at 6 p.m., I’ll be at Penn Social (801 E Street, N.W.) for a “Profs & Pints” talk on “Trump vs. Free Speech.” It’s a ticketed event, alas, but you can get tickets and find more details here.

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The One First “Long Read”: Removing Citizens(hip)

Historically, and for good reasons, it has been exceptionally difficult for the government to involuntarily revoke an American’s citizenship. 8 U.S.C. § 1481 identifies seven classes of activities that can subject citizens to a loss of citizenship:

(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or

(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or

(3) entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer; or

(4)(A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state; or (B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required; or

(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or

(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense; or

(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.

As should be clear from this list, most of the circumstances involve behavior in which an individual has manifested a specific and voluntary desire to surrender their citizenship—and not when citizenship has been revoked as a punishment. And even for subsection (a)(7), the one part that doesn’t seem to require that on its face, the statute today includes an umbrella condition—that loss of citizenship depends upon whether the individual “voluntarily perform[ed] any of the [specified] acts with the intention of relinquishing United States nationality.”

This latter condition was added by Congress in 1986—in direct response to the Supreme Court’s decision in Vance v. Terrazas. Vance had reaffirmed that the Fifth Amendment’s Due Process Clause requires the government to prove that a citizen specifically intended to surrender their U.S. citizenship, and not just that he voluntarily committed an expatriating act—such as swearing allegiance to a foreign nation. Thus, under Vance, it is effectively impossible to revoke citizenship as a punitive sanction simply for being convicted of a crime (to say nothing of merely being charged with one). After all, it’s not enough just to be convicted of the offenses listed in § 1481(a)(7); the government must still satisfy the Vance conditions—meaning it must prove that the defendant voluntarily committed those offenses with the intent of relinquishing their citizenship (and not just the intent of committing those crimes).

To be sure, Vance also upheld the burden of proof Congress has provided in such cases—which includes a presumption of voluntariness on the part of the individual. But the statute (and, per the Supreme Court, the Constitution) still requires individualized judicial review, and an opportunity for the individual whose citizenship the government is seeking to revoke to rebut the government’s arguments to that end. In other words, it is exceedingly difficult for the government to revoke an American’s citizenship under § 1481 without at least some voluntary conduct by the individual that falls within the scope of the statute; and it is all-but impossible to revoke citizenship as punishment for some other misbehavior.

Section 1481 applies to all U.S. citizens. For naturalized citizens (i.e., those who become citizens after birth), there’s one additional basis for revoking citizenship—and that’s if and only if their citizenship was “illegally procured or . . . procured by concealment of a material fact or by willful misrepresentation.” Here, too, the statute (and, almost certainly, the Constitution) requires notice and meaningful judicial review before an American’s citizenship can be stripped. As 8 U.S.C. § 1451(b) mandates,

The party to whom was granted the naturalization alleged to have been illegally procured or procured by concealment of a material fact or by willful misrepresentation shall, in any such proceedings under subsection (a) of this section, have sixty days’ personal notice, unless waived by such party, in which to make answers to the petition of the United States . . . .

Of course, the government can pursue denaturalization on broader grounds than it can pursue expatriation—since the Constitution doesn’t create a substantive right to naturalization in the same way it does for birthright citizenship. But the key is that here, too, the Supreme Court has regularly insisted not only on meaningful judicial review of denaturalization proceedings, but on construing the relevant statutes narrowly—including, most recently, in 2017. (For much more on the complexities of denaturalization, see this fantastic February 2020 “Practice Advisory” from the National Lawyers Guild and the Immigrant Legal Resource Center.)

In other words, although denaturalization is potentially available in more cases than expatriation, it still requires meaningful, individualized judicial review—review that holds the government to a significant burden in providing that an individual wrongfully obtained their citizenship, and not just that they engaged in questionable behavior thereafter. There is, simply, no easy, fast path to revoking any American’s citizenship without their consent—and there hasn’t been for decades. That may not stop the current administration from trying it anyway, or from removing citizens unlawfully and then resisting the legal consequences. But it’s important to be clear on what the actual legal authority for such maneuvers would be. Here, there isn’t any.

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SCOTUS Trivia:
The Cy Young(s) of the Supreme Court Bar

As noted above, Ed Kneedler delivered what is expected to be the last of his 160(!) oral arguments to the Supreme Court last Wednesday—which Chief Justice Roberts referred to as “the record for modern times.” (Former Deputy Solicitor General Larry Wallace had delivered 157 arguments between 1968 and 2003, which was widely viewed as the post-1900 record until Kneedler broke it.)

So far as I can tell, there is no “official” record for most appearances before the Supreme Court because, as is true in so many other respects, the Court’s records, at least for much of the nineteenth century, are … incomplete. But at least unofficially, the only two names that are often held out as having appeared before the Court even more often than Kneedler are Daniel Webster and Walter Jones. A 1973 biography of John W. Davis, who himself argued 141 cases in front of the Supreme Court in the early decades of the twentieth century, reports Webster as having argued between 185 and 200 cases, and Jones as having argued 317(!)—spanning a 49-year career from 1801-50. (Among other things, Jones was the U.S. Attorney for D.C. from 1802-21, at a time when U.S. Attorneys, rather than the Attorney General, were more likely to represent the United States in court.) Much like Cy Young’s 511 career victories, something tells me we’ll never get close to 317 arguments again.

I believe that Paul Clement, Michael Dreeben, and Malcolm Stewart are the only other active lawyers with more than 100 arguments before the Court. And with the Supreme Court hearing fewer total cases each term these days than at any point since the 1860s, it’s getting harder and harder (especially for non-governmental lawyers) to add to those tallies.

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1. “Deportation” was one of two pre-1996 means for expelling individuals from the United States (the other, depending upon their status, was “exclusion”). But since 1996, “removal” has become the correct umbrella legal term for all lawful processes to exclude non-citizens from the United States.