Trump, Flag-Burning and Citizenship
Charlie Savage reports at The New York Times:
Since the terrorist attacks of Sept. 11, 2001, politicians have periodically announced with fanfare that they would introduce a bill to strip the citizenship of Americans accused of terrorism. The idea tends to attract brief attention, but then fades away, in part because the Supreme Court long ago ruled that the Constitution does not permit the government to take a person’s citizenship against his or her will.
But on Tuesday, President-elect Donald J. Trump revived the idea and took it much further than the extreme case of a suspected terrorist. He proposed that Americans who protest government policies by burning the flag could lose their citizenship — meaning, among other things, their right to vote in future elections — as punishment.
...The obstacles include the precedent that the Constitution does not allow the government to expatriate Americans against their will, through a landmark 1967 case, Afroyim v. Rusk. They also include a 1989 decision, Texas v. Johnson, in which the court struck down criminal laws banning flag burning, ruling that the act was a form of political expression protected by the First Amendment.
The 1967 case involving the stripping of citizenship traces back to a 1940 law that automatically revoked the citizenship of Americans who took actions like voting in a foreign country’s election or joining its military.
The case centered on a man who had been born in Poland, became a naturalized American citizen, and later went to Israel and voted in an election there. When he subsequently tried to renew his American passport, the State Department refused, saying he was no longer an American citizen, and he sued.
In a 5-to-4 ruling, the Supreme Court called citizenship and the rights that stem from it “no light trifle to be jeopardized any moment” by politicians’ attempts to curtail it. The court said that the 14th Amendment, which guarantees due process of law, does not empower the government to “rob” someone’s citizenship. Americans, the ruling explained, can only lose their citizenship by voluntarily renouncing it.
“The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship,” Justice Hugo L. Black wrote.