Jean Monnet Center at NYU School of Law

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III. The Materiality of Citizenship

Current U.S. citizenship law emphasizes the functional aspect of citizenship: certain important functional rights hinge on U.S. citizenship. Prior to the 1996 Act, permanent residents had little to gain by becoming citizens. The 1996 Act increases the value of citizenship by creating serious alienage distinctions and paving the way for more. These distinctions between permanent residents and citizens -- even the minor ones that existed before 1996 -- are pivotal. If permanent residents perceive the substance of the rights that attach to permanent residence and the stability of permanent residence itself (that is, the low risk of deportation) to be threatened, they are likely to naturalize not as a gesture of allegiance, but as an effort to gain functional advantages.

A. The Substance of Permanent Residence

The substantive rights attaching to permanent residence depend on alienage distinctions imposed by the state and federal governments. Before the 1996 Act, permissible state distinctions between the substantive rights of citizens and permanent residents were few. States could exclude aliens from "political functions," which include jury service, voting in state elections,[39] and certain public employment positions.[40] In most situations, however, permanent residents enjoyed the same substantive rights as citizens because of the Supreme Court's identification of aliens as a suspect class for equal protection purposes.[41] The legal threshold of "compelling state interest" was a high hurdle for state alienage distinctions to jump.[42] Likewise, federal alienage distinctions were few prior to 1996 and did not impose major barriers to a meaningful and prosperous life in the United States.[43] Consequently, many permanent residents were content to remain unnaturalized, whereas those who did naturalize probably saw citizenship as an expression of their devotion to their new home, an act of allegiance to be undertaken only after supreme reflection and solemn decision. [44]

The 1996 Act demonstrates a new federal willingness to make alienage distinctions in a way that seriously threatens the substance of permanent residence. The Supreme Court's invalidation of state alienage distinctions relies squarely on the Equal Protection Clause of the Fourteenth Amendment, which does not apply to the federal government.[45] Instead, judicial review of federal alienage distinctions rests on the Fifth Amendment's Due Process Clause and is review in name only.[46] Federal alienage distinctions escape invalidation under equal protection principles by asserting "an overriding national interest" as long as there is "a legitimate basis for presuming that the rule was actually intended to serve that interest."[47] Such a basis is easily shown by citing "the national interest in providing an incentive for aliens to become naturalized." [48] Given that any alienage distinction -- except one that disadvantaged citizens relative to aliens -- arguably provides aliens with an incentive to naturalize, judicial review of federal alienage distinctions is but an illusion.[49]

The 1996 Act also heralded further restrictions of the substantive rights of permanent residents because it contained a congressional authorization of state alienage distinctions.[50] The familiar maxim that Congress cannot authorize the states to violate the Equal Protection Clause[51] suggests that this section of the Act may be unconstitutional.[52] However, the current Court might disavow the application of the Equal Protection Clause to aliens. The Court has invalidated a state alienage distinction on the basis of federal preemption of immigration law, apparently preferring the Supremacy Clause to due process and equal protection. [53] If such a doctrinal shift were to occur, it would have two important implications. First, preemption does not bar congressionally authorized state alienage distinctions, even if they would otherwise fail strict scrutiny.[54] Second, even unauthorized state distinctions might be permissible as long as they harmonized with federal immigration policy.[55] A state law is not "harmonious" if it "imposes additional burdens not contemplated by Congress."[56] Chief Justice Rehnquist has advocated a permissive standard of preemption that would allow state alienage distinctions except when such laws expressly purported to limit immigration[57] or when Congress "unambiguously declared its intention to foreclose the state law in question."[58] Adoption of either preemption theory to the exclusion of equal protection would allow greater substantive alienage distinctions.

The federal government's freedom to enact, and possibly to authorize states to enact, alienage distinctions gives permanent residents a strong incentive to naturalize. This incentive has become dominant due to Congress's recent exercise of this power.

B. The Stability of Permanent Residence

The instability of permanent residence also serves as an impetus toward naturalization. Like citizens and illegal aliens, permanent residents enjoy the Constitution's procedural protections while physically present within the United States.[59] Unlike citizens but like illegal aliens, permanent residents' physical presence in the country is not a right, but "a matter of permission and tolerance."[60] Nowhere is Congress's power more free of constitutional restraint than in the prescription of grounds for deportation and exclusion.[61] Congress may mandate deportation of any alien present in the United States -- whether a border-jumping felon or a legal immigrant of long residence -- based on racially discriminatory principles[62] or possibly for engaging in constitutionally protected conduct.[63] Deportation grounds may also retroactively mandate expulsion for activity that was legal when the alien engaged in it.[64] Similarly, every time a permanent resident leaves the United States, she risks exclusion upon attempting re-entry, even if the exclusion ground was promulgated after she left.[65] Some of this country's worst human tragedies have resulted from this morally questionable yet legally established principle.[66]

It is important to note that the mere fact that Congress has plenary power over the substance and stability of permanent residence has little eff ect on naturalization motives. [67] Rather, Congress's demonstrated willingness to exercise that power drives potential citizens to consider predominantly the material benefits of citizenship in deciding to naturalize.[68] In prior years, many permanent residents declined naturalization because of the minor burdens of citizenship, such as difficulty of getting naturalization information and the inconvenience of attending civics classes.[69] These hurdles become less important when an act of Congress, such as the 1996 Act, expressly bars permanent residents from rights that cannot be as easily forgone as the opportunity to vote or to work for the civil service.[70]

C. The Low Cost of Naturalization

Of course, if the naturalization process is itself burdensome or impossible for many permanent residents, its costs will outweigh the aforementioned benefits to substance and stability. Yet the U.S. policy encouraging naturalization is reflected in the costs of naturalization. The principal requirements are an understanding of English, U.S. history, and government;[71] five years of permanent residence;[72] physical presence within the United States for at least two and one half of the last five years, with no single absence exceeding six months' duration;[73] and good moral character.[74] These requirements are not demanding compared to those of some other countries.[75] Naturalization procedures themselves are not onerous; although applicants are understandably nervous, the chance of success is much higher than in asylum hearings, marriage interviews, or other immigration situations that permanent residents often encounter.[76]

One further naturalization requirement is that new citizens take an oath "in a public ceremony . . . to renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the applicant was before a subject or citizen."[77] Yet the popular myth that the United States requires new citizens to renounce former citizenships effectively was only ever a myth. Renunciation is a burden only if the emigrant country recognizes naturalization in the United States as an expatriating act. Thus the possibility of dual citizenship for naturalized U.S. citizens depends exclusively on the law of the emigrant country, which is always free to ignore the renunciatory language of the U.S. oath. [78] Many emigration countries have recently done just this in order to maintain civic ties to successful emigrant groups. [79] Mexico's recently proposed constitutional amendment allowing dual nationality, a direct response to U.S. efforts to curtail the rights of permanent residents,[80] is only the most recent example. Apart from exerting diplomatic pressure to change the law, the United States can do little about this. [81]

Another potential cost of naturalization is the shouldering of duties particular to citizens under national law. This is often a deterrent to naturalization in countries that have mandatory military service for citizens or comparatively high tax rates. Yet in the United States, the citizen's duties are not significantly greater than the permanent resident's, which already include full tax responsibility and military registration and service.[82]

On every level, therefore, U.S. citizenship law provides functional incentives that push permanent residents to naturalize.[83] Because of naturalization's low costs, they have little to lose in doing so. As Part II revealed, however, mere adoption of the functional status of "U.S. citizen" does not necessarily reflect a tie of national identity. Thus the current unitary citizenship structure has two flaws. First, it does not accurately reflect the experience it purports to define. Second, it perpetuates the illusion that increased functional incentives to naturalize increase the sense of national identity. The appropriate solution is to decouple functional citizenship and nationality as outlined in Part II above. Decoupling would allow the United States to retain the current naturalization criteria for full functional citizenship and also establish an official means to promote nationality in a meaningful manner.

[]39 See Schuck, supra note 9, at 54.

[]40 See Cabell v. Chavez-Salido, 454 U.S. 432, 447 (1982) (probation officers); Ambach v. Norwick, 441 U.S. 68, 80-81 (1979) (public school teachers); Foley v. Connelie, 435 U.S. 291, 300 (1978) (police officers); Sugarman v. Dougall, 413 U.S. 634, 646-49 (1973) (certain civil service positions). The Constitution also bars aliens from holding certain offices in the federal government. See U.S. CONST. art. I, § 2, cl. 2 (Representative); id. § 3, cl. 3 (Senator); id. art. II, § 1, cl. 5 (President). Note the conspicuous omission of "judge," although states seem able to make alienage distinctions in selecting members for their judiciaries. See Sugarman, 413 U.S. at 647.

[]41 See Graham v. Richardson, 403 U.S. 365, 372 (1971) (holding that state "classifications based on alienage . . . are inherently suspect and subject to close judicial scrutiny").

[]42 See, e.g., Teitscheid v. Leopold, 342 F. Supp. 299, 303 (D. Vt. 1971); Younus v. Shabat, 336 F. Supp. 1137, 1139 (N.D. Ill. 1971). As of 1977, the only rights that states could clearly withhold from aliens were the right to vote, the right to hold elective public office, and the right to serve on a jury. See United States v. Phetchanphone, 863 F. Supp. 1543, 1547 (D. Utah 1994) (citing cases).

[]43 Until 1996, the federal government's major alienage distinctions involved public employment, voting, membership on federal juries, and sponsorship opportunities allowing family members to emigrate the United States. See Schuck, supra note 9, at 54-55.

[]44 See id. at 58.

[]45 See, e.g., Mathews v. Diaz, 426 U.S. 67, 86-87 (1976). Although the Court has incorporated equal protection principles into the Fifth Amendment, see Bolling v. Sharpe, 347 U.S. 497, 499 (1954), the federal power over immigration "justif[ies] selective federal legislation that would be unacceptable for an individual State." Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976).

[]46 The idea that the Fifth Amendment's Due Process Clause requires any review at all of substantive distinctions is doctrinally questionable. Then-Justice Rehnquist convincingly portrayed such review as a clandestine effort to subject the federal government to the Fourteenth Amendment's equal protection standard. See Mow Sun Wong, 426 U.S. at 121-22 (Rehnquist, J., dissenting).

[]47 Mow Sun Wong, 426 U.S. at 103.

[]48 Id. at 105.

[]49 Mow Sun Wong was the exceptional case of a federal agency, which must justify alienage distinctions with "reasons which are properly the concern of that agency." Id. at 116. Such reasons typically do not include promotion of naturalization. This requirement vanishes if the President or Congress explicitly authorizes the alienage distinction. See Mow Sun Wong v. Campbell, 626 F.2d 739, 745 (9th Cir. 1980) (upholding the agency's alienage distinction after an Executive Order authorized it "to provide an incentive for aliens to qualify for naturalization").

[]50 See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 412, 110 Stat. 2105, 2269-70.

[]51 See Graham v. Richardson, 403 U.S. 365, 382 (1971).

[]52 See Recent Legislation, 110 HARV. L. REV. 1191, 1194 (1997).

[]53 See Toll v. Moreno, 458 U.S. 1, 9-10, 11 n.16 (1982); see also David A. Martin, Due Process and Membership in the National Community: Political Asylum and Beyond, 44 U. PITT. L. REV. 165, 196 (1983) (observing that the "equal protection cases probably do not represent the Supreme Court at its analytical best").

[]54 See De Canas v. Bica, 424 U.S. 351, 358 n.6 (1976) (stating that preemption bars "state regulation not congressionally sanctioned that discriminates against aliens lawfully admitted" (emphasis added)).

[]55 See id. at 356-63.

[]56 Id. at 358 & n.6.

[]57 See Toll, 458 U.S. at 29 (Rehnquist, J., dissenting).

[]58 Id. at 27.

[]59 See Martin, supra note 53, at 176-77 ("[M]ere membership in the human species, combined with physical presence, is enough to call our constitutional protections fully into play.").

[]60 Harisiades v. Shaughnessy, 342 U.S. 580, 586-87 (1952).

[]61 See Kleindienst v. Mandel, 408 U.S. 753, 766 (1972).

[]62 See Harisiades, 342 U.S. at 597 (Frankfurter, J., concurring).

[]63 The Supreme Court has not confronted this issue directly, but Harisiades's casual rejection of a First Amendment challenge to the deportation statute suggests the possibility. See Harisiades, 342 U.S. at 591-92. But see American-Arab Anti-Discrimination Comm. v. Meese, 714 F. Supp. 1060, 1078 (C.D. Cal. 1989) (arguing that the fact that the Harisiades Court considered the First Amendment at all indicates the possibility of a substantive challenge to deportation grounds), vacated, 970 F.2d 501 (9th Cir. 1992).

[]64 See Harisiades, 342 U.S. at 593-95.

[]65 See Chae Chan Ping v. United States, 130 U.S. 581, 609 (1889). These enactments do not violate the Eighth Amendment or the Ex Post Facto Clause, because deportation and exclusion are not "punishment." See Harisiades, 342 U.S. at 594-95; Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893).

[]66 See, e.g., Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 216-17 (1953) (Black, J., dissenting) (summarizing the holding that a permanent resident excluded without a hearing could be detained indefinitely on Ellis Island); Chae Chan Ping, 130 U.S. at 582 (upholding the exclusion of a 12-year resident excluded after a brief voyage to China in 1887, despite his having secured the required documentation for return to the United States). Chae Chan Ping was the major source of the doctrine of congressional plenary power over immigration, which now bears the notorious name of the Chinese Exclusion doctrine.

[]67 Cf. THOMAS ALEXANDER ALEINIKOFF, DAVID A. MARTIN & HIROSHI MOTOMURA, IMMIGRATION: PROCESS AND POLICY 975 (3d ed. 1995) (stating that, as of 1992, "large numbers of resident aliens seem quite indifferent to the blandishments of U.S. citizenship"); Schuck, supra note 9, at 58 (arguing that deportation is not a great risk for most aliens, which in turn diminishes the urgency of naturalization).

[]68 See Mears, supra note 5 (describing "a wave of immigrants" who are not concerned about welfare benefits but view the 1996 Act as a harbinger of further alienage distinctions and possible deportation).

[]69 See Elizabeth Llorente, Legal is No Longer Enough: A Race for Citizenship: New Laws Trigger Application Surge, NORTHERN N.J. RECORD, Sept. 18, 1996, at A1.

[]70 The constitutionality of the 1996 Act and the political or moral soundness of Congress's plenary power over deportation and exclusion grounds are thus peripheral to this discussion. This Note assumes that Congress has the power to enact similar alienage distinction legislation, even if the 1996 Act is held unconstitutional.

[]71 See 8 U.S.C. § 1423(a)(1), (2) (1994).

[]72 See id. § 1427(a).

[]73 See id. § 1427(a), (b).

[]74 See id. § 1427(a). Other minor requirements apply that do not implicate the majority of naturalization applicants. See, e.g., id. §§ 1424-1426.

[]75 See Sarah V. Wayland, Citizenship and Incorporation: How Nation-States Respond to the Challenges of Migration, 20 FLETCHER F. WORLD AFF. 35, 43 (1996).

[]76 However, learning a second language and memorizing historical facts can be prohibitively difficult for elderly or disabled immigrants. The 1996 Act yielded the alarming situation of disabled immigrants who relied on social welfare benefits to survive and were physically unable to meet naturalization requirements. See Jacobs, supra note 5. In March 1997, the U.S. government implemented regulations that allow disabled immigrants to naturalize without knowledge of English or civics, thus further reducing the costs of naturalization. See id.

[]77 8 U.S.C. § 1448(a) (1994).

[]78 See, e.g., Convention on Certain Questions Relating to the Conflict of Nationality Laws, art. 1, opened for signature, Apr. 12, 1930, 179 L.N.T.S. 89, 99 ("It is for each state to determine under its own law who are its nationals."); Schneider v. Rusk, 377 U.S. 163, 174 (1964) (Clark, J., dissenting) (listing seven countries that did not expatriate citizens that were naturalized in the United States).

[]79 See Rainer Bauböck, Citizenship and National Identities in the European Union 10 (1997) (unpublished manuscript, on file with the Harvard Law Library).

[]80 See Jorge A. Vargas, Dual Nationality for Mexicans? A Comparative Legal Analysis of the Dual Nationality Proposal and Its Eventual Political and Socio-Economic Implications, 18 CHICANO-LATINO L. REV. 1, 3 (1996).

[]81 See Bauböck, supra note 79, at 8. The mythical bar on dual citizenship only really applied to U.S. citizens who subsequently naturalized elsewhere. By 1980, however, the Supreme Court had held that the Constitution only allows expatriation if the citizen committed the expatriating action with intent of giving up her U.S. citizenship. See Vance v. Terrazas, 444 U.S. 252, 270 (1980). The expatriation statute has since incorporated this requirement. See 8 U.S.C. § 1481(a). In 1990, the State Department announced that it would presume that U.S. citizens did not intend to give up U.S. citizenship by obtaining naturalization elsewhere or "subscrib[ing] to routine declarations of allegiance to a foreign state." 67 Interp. Rel. 1092, 1093 (1990).

[]82 See In re Griffiths, 413 U.S. 717, 722 (1973).

[]83 Encouraging naturalization was not one of the stated aims of the 1996 Act, see Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 400(5)-(6), 110 Stat. 2105, 2260, but at least one commentator views such alienage distinctions as properly serving that interest. See Peter H. Schuck, Whose Membership Is It, Anyway? Comments on Gerald Neuman, 35 VA. J. INT'L L. 321, 328 (1994).

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