Introduction

More and more U.S. citizens are relinquishing their U.S. citizenship. The mechanism to do this is found in S. 349(a) of the Immigration and Nationality Act. A statutory right to expatriation does not imply a constitutional right to expatriation. In the last few years (specifically in the Roger case and the Accidental Americans case) the U.S. government has denied that there is a constitutional right to expatriation.

The Constitutional Right To Retain U.S. Citizenship May NOT Include A Constitutional Right To Relinquish U.S. Citizenship

It’s likely that the constitutional status of the right to relinquish U.S. citizenship will be litigated!

It is likely that (sooner or later) the courts will rule on whether U.S. citizens have a constitutional right to expatriate. In that spirit, I believe that the then Chief Justice Warren’s dissent in Perez v. Brownell should be remembered.

The 1967 case of Afroyim v. Rusk overruled the 1958 decision in Perez v. Brownnell

U.S citizenship stripping – 1958 to 1967

The 1967 U.S. Supreme Court decision in Afroyim v. Rusk specifically overruled the 1958 Supreme Court decision in Perez v. Brownell. The majority in the 1958 decision in Perez v. Brownell affirmed the right of Congress to strip U.S. citizens of their citizenship. The majority in the 1967 decision in Afroyim ruled that Congress could not strip a U.S. citizen who born or naturalized in the United States of their citizenship. The majority decision in Afroyim was written by Justice Black who was part of the Warren minority in Brownell.

U.S. citizenship relinquishment in a post-FATCA world – 2010 and onwards

More than half a century later, many U.S. citizens are constructively forced to renounce their U.S. citizenship. Recent litigation (Roger Ver, Accidental Americans, etc.) has raised the issue of whether U.S. citizens have a constitutional right to expatriate.

It is worth remembering Justice Warren’s dissent in Perez v. Brownell. In Perez, Justice Warren stated that U.S. citizens DO have the right to expatriate! I agree that Justice Warren was writing the dissent. I also agree that the right of expatriation was NOT the precise issue in Perez v. Brownell. That said, Perez v. Brownell is an example where a Justice of the Supreme Court of the United States has considered the right of expatriation and stated that U.S. citizens do have a right to expatriate.

Beginning on page 66 Chief Justice Warren stated:

There is no question that citizenship may be voluntarily relinquished. The right of voluntary expatriation was ‘recognized by Congress in 1868.1 Congress declared that “the right of expatriation is a natural and inherent right of all people .” ,, Although the primary purpose of this declaration was the protection of our naturalized citizens from the claims of their countries of origin, the language was properly regarded as establishing the reciprocal right of American citizens to abjure their allegiance. 1 In the early days of this Nation the right of expatriation lad been a matter of controversy. The common-law doctrine of perpetial allegiance was evident in the opinions of this Court. 2 And, although impressment of naturalized American seamen of British birth was a cause of the War of 1812, the executive officials of this Government were not unwavering in their support of the right of expatriation.” Prior to 1868 all efforts to obtain congressional enactments concerning expatriation failed. 4 The doctrine of perpetual allegiance, however, was so ill-suited to the growing nation whose doors were open to -immigrants from abroad that it could not last. Nine years before Congress acted Attorney General Black stated the American positiori in a notable opinion:

“Here, in the United States, the thought of giving it [the right of ‘expatriation] up cannot be entertained for a moment. Upon that principle this country was populated. We owe to it our existence as a nation. Ever since our independence we have upheld and maintained it by every form of words and acts. We have constantly promised full and complete protection to all persons who should come here and seek it by renouncing their natural allegiance and transferring their fealty to us. We stand pledged to it in the face of the whole world.”

https://tile.loc.gov/storage-services/service/ll/usrep/usrep356/usrep356044/usrep356044.pdf

The complete PDF of the decision is available here:

service-ll-usrep-usrep356-usrep356044-usrep356044

Justice Warren’s dissent includes the building blocks of an argument that expatriation is a constitutional right.

I suspect that I (and perhaps others) will reread this post in the years to come!

John Richardson – Follow on X.com/ExpatriationLaw