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The Enumerated Powers Series: Naturalization (Immigration)

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Photo by Willian Luiz on
"The Congress shall have Power To...establish an uniform Rule of Naturalization..."

Immigration was a pillar of the American founding, so much so that being unable to successfully immigrate was one of the reasons America declared her independence from Great Britain. The Declaration of Independence listed “obstructing the Laws for the Naturalization of Foreigners” as one of their grievances with the empire. The nation was built on immigration and the founders believed in the ability for foreigners to come to America and obtain citizenship (naturalization).

James Madison said that he and the fellow authors of the Constitution, wished “to invite foreigners of merit and republican principles among us. America was indebted to emigration for her settlement and prosperity”.

Historical Context

While the idea of immigration was central to the nation before she was even a “nation”, the application of the idea was messy. Under the Articles of Confederation (the “Constitution” before the Constitution”), each state possessed the power and authority to handle all matters of immigration. The issue, of course, was that there was no one way to become an American citizen. Thus, naturalization was one of the defects of the Confederation that the framers intended to fix at the Constitutional Convention.

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Thus, there was little debate surrounding the decision to shift all naturalization power from the states to the federal government under the new Constitution. Hence, the rather unfettered enumerated power quoted above. Congress possess all power to establish, by law, the requirements to be met for American citizenship.

The first “uniform rule” of naturalization passed by Congress in 1790 established that “any alien, being a free white person” and “of good character”, who also has lived in the U.S. for two years, could become a citizen by taking an oath “to support the constitution of the United States.” (

While a few states did attempt to reclaim this naturalization power, the Court made it abundantly clear that it was an exclusively Congressional power in the Supreme Court case Chirac v. Lessee of Chirac (1817).

Congress also wrote immigration laws regarding expatriationstripping an American citizen of her citizenship.

American citizens can choose to formally renounce their citizenship, but Congress established that becoming a citizen of a foreign state, declaring allegiance to a foreign state, serving in the armed forces of a foreign state when that foreign state is engaged in conflict against America, or, in some cases servicing in governmental office in a foreign state results in expatriation. However, over time, the Supreme Court whittled away at Congress’ power to strip Americans of their citizenship.

"Prior to several important Supreme Court decisions in the last half of the twentieth century, federal law had also required loss of citizenship for, among other acts, voting in a foreign election; deserting during wartime; leaving the country during wartime to evade military service; and, for those who acquired dual nationality at birth, voluntarily seeking or claiming the benefits of foreign nationality and residing in the foreign state for three years continuously after the age of twenty-two.

Although the Supreme Court in MacKenzie v. Hare (1915) upheld Congress’s power to expatriate, in 1958 the Court began to cut back on Congress’s power in a number of closely decided cases. Although it upheld expatriation (removal of citizenship) for voting in a foreign election, Perez v. Brownell (1958), it explicitly overruled that decision less than a decade later, in Afroyim v. Rusk (1967), ruling that a naturalized American citizen who relocated to Israel and voted in an election for the Israeli Knesset could not lose his citizenship as a result. It also overturned expatriations for desertion from the military during wartime, Trop v. Dulles (1958), and for service by a dual national in the Japanese army during World War II, Nishikawa v. Dulles(1958). In 1963, in Kennedy v. Mendoza-Martinez, the Court ruled that a citizen could not be expatriated for fleeing the country during wartime to evade military service. The following year, it extended the limits on expatriation to naturalized citizens who returned to their native countries and resided there for at least three years, Schneider v. Rusk (1964)."

While expatriation is not impossible, it’s far more difficult for Congress than it used to be. Further, dual citizenship, while technically not legal is now, because of the Court’s limitations on Congress’ power to enforce expatriation, very common.

Naturalization Oath

The framers of the new U.S. government and hence, nation, wanted to be sure that anyone becoming a U.S. citizen would never threaten the Republic or the Constitution. Notice the “oath” that a new citizen is bound to swear in order to become a U.S. citizen? He or she is not bound to swear to love the country, to never leave the country, or to love and respect the government. A new citizen is required to swear to defend the U.S. Constitution.

Friends, the weight of importance that the founders put on the supremacy of the Constitution in this country cannot be overstated. I’ve written articles on the government’s oaths of office, how government swears to protect and defend the Constitution-not liberty, or the President or the citizenry-since it’s the Constitution that will protect and defend liberty, the President and the citizenry. And I just wrote about the role Congress and the executive have in interpreting and applying the Constitution to all government action rather than leaving this to the courts only.

Now recognize that the founders not only understood the critical importance of government defending the Constitution, but they understood and pursued the even greater goal of making sure American citizens defend the Constitution.

Remember, we cannot defend something we know nothing about.

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Modern Day Requirements

While some of the requirements have changed over the years, the overall expectations for citizenship remain the same as those initially established in 1790 (One significant change being that, race, sex or marital status cannot be used to prevent anyone from becoming a citizen).

Here are the requirements as listed on the U.S. Immigration Website:

  • Be at least 18 years old at the time you file Form N-400, Application for U.S. Citizenship
  • Be a permanent resident (have a Green Card) for at least 5 years.
  • Demonstrate continuous residence in the United States for at least 5 years immediately before the date you file Form N-400.
  • Show that you have been physically present in the United States for at least 30 months out of the 5 years immediately before the date you file Form N-400.
  • Show that you have lived for at least 3 months in the state or USCIS district where you apply. Students may apply for naturalization either where they go to school or where their family lives (if they are still financially dependent on their parents).
  • Be a person of good moral character.
  • Demonstrate an attachment to the principles and ideals of the U.S. Constitution.
  • Be able to read, write, and speak basic English.
  • Have a basic understanding of U.S. history and government (civics).
  • Take an oath of allegiance to the United States. [Which is specifically to defend the Constitution].

It’s difficult to become a U.S. citizen and if anyone wants to change the naturalization process, it’s not the president we should appeal to–but Congress. However, in doing so, we should always remember that there is a weight of responsibility attached to citizenship… a responsibility that should never be devalused no matter how we choose to change the laws and requirements.

Further, for those of us who were born into citizenship, this oath to defend the Constitution still applies.

Imagine what this country would look like if every American citizen actually knew and took their oath to defend the Constitution to heart?

The Liberty Belle

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