Clause 4

Clause 4. The Congress shall have Power * * * To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.

NATURALIZATION AND CITIZENSHIP
Nature and Scope of Congress’s Power

Naturalization has been defined by the Supreme Court as “the act of adopting a foreigner, and clothing him with the privileges of a native citizen.”1310 In the Dred Scott case,1311 the Court asserted that the power of Congress under this clause applies only to “persons born in a foreign country, under a foreign Government.”1312 These dicta are much too narrow to describe the power that Congress has actually exercised on the subject. The competence of Congress in this field merges, in fact, with its indefinite, inherent powers in the field of foreign relations. “As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries.”1313

Congress’s power over naturalization is an exclusive power; no state has the independent power to constitute a foreign subject a citizen of the United States.1314 But power to naturalize aliens under federal standards may be, and was early, devolved by Congress upon state courts of record.1315 And though the states may not prescribe requirements for citizenship, they may confer rights, including political rights, to resident aliens. At one time, it was not uncommon for states to confer the right of suffrage upon resident aliens, especially upon those who had declared their intention to become citizens, and several states continued to do so until well into the twentieth century.1316

Citizenship by naturalization is a privilege to be given or withheld as Congress may determine: “It is not within the province of the courts to make bargains with those who seek naturalization. They must accept the grant and take the oath in accordance with the terms fixed by the law, or forego the privilege of citizenship. There is no middle choice.”1317 This interpretation makes of the naturalization power the only power granted in § 8 of Article I that is unrestrained by constitutional limitations on its exercise. Thus, the first naturalization act enacted by the first Congress restricted naturalization to “free white person[s],”1318 which was expanded in 1870 so that persons of “African nativity and . . . descent” were entitled to be naturalized.1319 “Chinese laborers” were specifically excluded from eligibility in 1882,1320 and the courts enforced these provisions without any indication that constitutional issues were thereby raised.1321 These exclusions are no longer law. Present naturalization statutes continue to require loyalty and good moral character and generally bar subversives, terrorists, and criminals, among others, from citizenship.1322

Although the usual form of naturalization is through individual application and official response on the basis of general congressional rules, naturalization is not so limited. Citizenship can be conferred by special act of Congress,1323 it can be conferred collectively either through congressional action, such as the naturalization of all residents of an annexed territory or of a territory made a state,1324 or through treaty provision.1325

Categories of Citizens: Birth and Naturalization

The first sentence of § 1 of the Fourteenth Amendment contemplates two sources of citizenship and two only: birth and naturalization.1326 This contemplation is given statutory expression in § 301 of the Immigration and Nationality Act of 1952,1327 which itemizes those categories of persons who are citizens of the United States at birth; all other persons in order to become citizens must pass through the naturalization process. The first category merely tracks the language of the first sentence of § 1 of the Fourteenth Amendment in declaring that all persons born in the United States and subject to the jurisdiction thereof are citizens by birth.1328 But there are six other categories of citizens by birth. They are: (2) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe, (3) a person born outside the United States of citizen parents one of whom has been resident in the United States, (4) a person born outside the United States of one citizen parent who has been continuously resident in the United States for one year prior to the birth and of a parent who is a national but not a citizen, (5) a person born in an outlying possession of the United States of one citizen parent who has been continuously resident in the United States or an outlying possession for one year prior to the birth, (6) a person of unknown parentage found in the United States while under the age of five unless prior to his twenty-first birthday he is shown not to have been born in the United States, and (7) a person born outside the United States of an alien parent and a citizen parent who has been resident in the United States for a period of ten years, provided the person is to lose his citizenship unless he resides continuously in the United States for a period of five years between his fourteenth and twenty-eighth birthdays.

Subsection (7) citizens must satisfy the condition subsequent of five years continuous residence within the United States between the ages of fourteen and twenty-eight, a requirement held to be constitutional,1329 which means in effect that for constitutional purposes, according to the prevailing interpretation, there is a difference between persons born or naturalized in, that is, within, the United States and persons born outside the confines of the United States who are statutorily made citizens.1330 The principal difference is that the former persons may not be involuntarily expatriated whereas the latter may be, subject only to due process protections.1331

The Naturalization of Aliens

Although, as has been noted, throughout most of our history there were significant racial and ethnic limitations upon eligibility for naturalization, the present law prohibits any such discrimination.

“The right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex or because such person is married.”1332 However, any person “who advocates or teaches, or who is a member of or affiliated with any organization that advocates or teaches . . . opposition to all organized government,” or “who advocates or teaches or who is a member of or affiliated with any organization that advocates or teaches the overthrow by force or violence or other unconstitutional means of the Government of the United States” or who is a member of or affiliated with the Communist Party, or other communist organizations, or other totalitarian organizations is ineligible.1333 These provisions moreover are “applicable to any applicant for naturalization who at any time within a period of ten years immediately preceding the filing of the petition for naturalization or after such filing and before taking the final oath of citizenship is, or has been found to be, within any of the classes enumerated within this section, notwithstanding that at the time the petition is filed he may not be included within such classes.”1334

Other limitations on eligibility are also imposed. Eligibility may turn upon the decision of the responsible officials whether the petitioner is of “good moral character.”1335 The immigration and nationality laws themselves include a number of specific congressional determinations that certain persons do not possess “good moral character,” including persons who are “habitual drunkards,”1336 adulterers,1337 polygamists or advocates of polygamy,1338 gamblers,1339 convicted felons,1340 and homosexuals.1341 In order to petition for naturalization, an alien must have been resident for at least five years and to have possessed “good moral character” for all of that period.

The process of naturalization culminates in the taking in open court of an oath “(1) to support the Constitution of the United States; (2) to renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the petitioner was before a subject or citizen; (3) to support and defend the Constitution and the laws of the United States against all enemies, foreign and domestic; (4) to bear true faith and allegiance to the same; and (5) (A) to bear arms on behalf of the United States when required by the law, or (B) to perform noncombatant service in the Armed Forces of the United States when required by the law, or (C) to perform work of national importance under civilian direction when required by law.”1342

Any naturalized person who takes this oath with mental reservations or conceals or misrepresents beliefs, affiliations, and conduct, which under the law disqualify one for naturalization, is subject, upon these facts being shown in a proceeding brought for the purpose, to have his certificate of naturalization cancelled.1343 Moreover, if within a year of his naturalization a person joins an organization or becomes in any way affiliated with one which was a disqualification for naturalization if he had been a member at the time, the fact is made prima facie evidence of his bad faith in taking the oath and grounds for instituting proceedings to revoke his admission to citizenship.1344

Rights of Naturalized Persons

Chief Justice Marshall early stated in dictum that “[a] naturalized citizen . . . becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national legislature is, to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual.”1345 A similar idea was expressed in Knauer v. United States.1346 “Citizenship obtained through naturalization is not a second-class citizenship. . . . [It] carries with it the privilege of full participation in the affairs of our society, including the right to speak freely, to criticize officials and administrators, and to promote changes in our laws including the very Charter of our Government.”

Despite these dicta, it is clear that particularly in the past but currently as well a naturalized citizen has been and is subject to requirements not imposed on native-born citizens. Thus, as we have noted above, a naturalized citizen is subject at any time to have his good faith in taking the oath of allegiance to the United States inquired into and to lose his citizenship if lack of such faith is shown in proper proceedings.1347 And the naturalized citizen within a year of his naturalization will join a questionable organization at his peril.1348 In Luria v. United States,1349 the Court sustained a statute making prima facie evidence of bad faith a naturalized citizen’s assumption of residence in a foreign country within five years after the issuance of a certificate of naturalization. But in Schneider v. Rusk,1350 the Court voided a statute that provided that a naturalized citizen should lose his United States citizenship if following naturalization he resided continuously for three years in his former homeland. “We start,” Justice Douglas wrote for the Court, “from the premise that the rights of citizenship of the native-born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President.”1351 The failure of the statute, the Court held, was that it impermissibly distinguished between native-born and naturalized citizens, denying the latter the equal protection of the laws.1352 “This statute proceeds on the impermissible assumption that naturalized citizens as a class are less reliable and bear less allegiance to this country than do the native-born. This is an assumption that is impossible for us to make. . . . A native-born citizen is free to reside abroad indefinitely without suffering loss of citizenship. The discrimination aimed at naturalized citizens drastically limits their rights to live and work abroad in a way that other citizens may. It creates indeed a second-class citizenship. Living abroad, whether the citizen be naturalized or native-born, is no badge of lack of allegiance and in no way evidences a voluntary renunciation of nationality and allegiance.”1353

The Schneider equal protection rationale was abandoned in the next case in which the Court held that the Fourteenth Amendment forbade involuntary expatriation of naturalized persons.1354 But in Rogers v. Bellei,1355 the Court refused to extend this holding to persons statutorily naturalized at birth abroad because one of their parents was a citizen and similarly refused to apply Schneider. Thus, one who failed to honor a condition subsequent had his citizenship revoked. “Neither are we persuaded that a condition subsequent in this area impresses one with ‘second-class citizenship.’ That cliche is too handy and too easy, and, like most cliches, can be misleading. That the condition subsequent may be beneficial is apparent in the light of the conceded fact that citizenship was fully deniable. The proper emphasis is on what the statute permits him to gain from the possible starting point of noncitizenship, not on what he claims to lose from the possible starting point of full citizenship to which he has no constitutional right in the first place. His citizenship, while it lasts, although conditional, is not ‘second-class.’ ”1356

It is not clear where the progression of cases has left us in this area. Clearly, naturalized citizens are fully entitled to all the rights and privileges of those who are citizens because of their birth here. But it seems equally clear that with regard to retention of citizenship, naturalized citizens are not in the secure position of citizens born here.1357

On another point, the Court has held that, absent a treaty or statute to the contrary, a child born in the United States who is taken during minority to the country of his parents’ origin, where his parents resume their former allegiance, does not thereby lose his American citizenship and that it is not necessary for him to make an election and return to the United States.1358 On still another point, it has been held that naturalization is so far retroactive as to validate an acquisition of land prior to naturalization as to which the alien was under a disability.1359

Expatriation: Loss of Citizenship

The history of the right of expatriation, voluntarily on the part of the citizen or involuntarily under duress of statute, is shadowy in United States constitutional law. Justice Story, in the course of an opinion,1360 and Chancellor Kent, in his writings,1361 accepted the ancient English doctrine of perpetual and unchangeable allegiance to the government of one’s birth, a citizen being precluded from renouncing his allegiance without permission of that government. The pre-Civil War record on the issue is so vague because there was wide disagreement on the basis of national citizenship in the first place, with some contending that national citizenship was derivative from state citizenship, which would place the power of providing for expatriation in the state legislatures, and with others contending for the primacy of national citizenship, which would place the power in Congress.1362 The citizenship basis was settled by the first sentence of § 1 of the Fourteenth Amendment, but expatriation continued to be a muddled topic. An 1868 statute specifically recognized “the right of expatriation” by individuals, but it was directed to affirming the right of foreign nationals to expatriate themselves and to become naturalized United States citizens.1363 An 1865 law provided for the forfeiture of the “rights of citizenship” of draft-dodgers and deserters, but whether the statute meant to deprive such persons of citizenship or of their civil rights is unclear.1364 Beginning in 1940, however, Congress did enact laws designed to strip of their citizenship persons who committed treason,1365 deserted the armed forces in wartime,1366 left the country to evade the draft,1367 or attempted to overthrow the government by force or violence.1368 In 1907, Congress provided that female citizens who married foreign citizens were to have their citizenship held “in abeyance” while they remained wedded but to be entitled to reclaim it when the marriage was dissolved.1369

About the simplest form of expatriation, the renunciation of citizenship by a person, there is no constitutional difficulty. “Expatriation is the voluntary renunciation or abandonment of nationality and allegiance.”1370 But while the Court has hitherto insisted on the voluntary character of the renunciation, it has sustained the power of Congress to prescribe conditions and circumstances the voluntary entering into of which constitutes renunciation; the person need not intend to renounce so long as he intended to do what he did in fact do.1371

The Court first encountered the constitutional issue of forced expatriation in the rather anomalous form of the statute,1372 which placed in limbo the citizenship of any American female who married a foreigner. Sustaining the statute, the Court relied on the congressional foreign relations power exercised in order to prevent the development of situations that might entangle the United States in embarrassing or hostile relationships with a foreign country. Noting too the fictional merging of identity of husband and wife, the Court thought it well within congressional power to attach certain consequences to these actions, despite the woman’s contrary intent and understanding at the time she entered the relationship.1373

Beginning in 1958, the Court had a running encounter with the provisions of the 1952 Immigration and Nationality Act, which prescribed expatriation for a lengthy series of actions.1374 In 1958, a five-to-four decision sustained the power to divest a dual national of his United States citizenship because he had voted in an election in the other country of which he was a citizen.1375 But at the same time, another five-to-four decision, in which a majority rationale was lacking, struck down punitive expatriation visited on persons convicted by court-martial of desertion from the armed forces in wartime.1376 In the next case, the Court struck down another punitive expatriation visited on persons who, in time of war or emergency, leave or remain outside the country in order to evade military service.1377 And, in the following year, the Court held unconstitutional a section of the law that expatriated a naturalized citizen who returned to his native land and resided there continuously for a period of three years.1378

The cases up to this point had lacked a common rationale and would have seemed to permit even punitive expatriation under the proper circumstances. But, in Afroyim v. Rusk,1379 a five-to-four majority overruled the 1958 decision permitting expatriation for voting in a foreign election and announced a constitutional rule against all but purely voluntary renunciation of United States citizenship. The majority ruled that the first sentence of § 1 of the Fourteenth Amendment constitutionally vested citizenship in every person “born or naturalized in the United States” and that Congress was powerless to take that citizenship away.1380 The continuing vitality of this decision was called into question by another five-to-four decision in 1971, which technically distinguished Afroyim in upholding a congressionally prescribed loss of citizenship visited upon a person who was statutorily naturalized “outside” the United States, and held not within the protection of the first sentence of § 1 of the Fourteenth Amendment.1381 Thus, although Afroyim was distinguished, the tenor of the majority opinion was hostile to its holding, and it may be that a future case will overrule it.

The issue, then, of the constitutionality of congressionally prescribed expatriation is unsettled.

ALIENS

The power of Congress “to exclude aliens from the United States and to prescribe the terms and conditions on which they come in” is absolute, being an attribute of the United States as a sovereign nation. “That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be to that extent subject to the control of another power. . . . The United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory.”1382

Except for the Alien Act of 1798,1383 Congress went almost a century without enacting laws regulating immigration into the United States. The first such statute, in 1875, barred convicts and prostitutes1384 and was followed by a series of exclusions based on health, criminal, moral, economic, and subversion considerations.1385 Another important phase was begun with passage of the Chinese Exclusion Act in 1882,1386 which was not repealed until 1943.1387 In 1924, Congress enacted into law a national origins quota formula which based the proportion of admittable aliens on the nationality breakdown of the 1920 census, which, of course, was heavily weighed in favor of English and northern European ancestry.1388 This national origins quota system was in effect until it was repealed in 1965.1389 The basic law remains the Immigration and Nationality Act of 1952,1390 which retains its essential structure while undergoing several significant revisions. These revisions have included a temporary legalization program for certain unauthorized aliens, employer sanctions, a general expansion and tightening of rules for removal, changes in categories of aliens who may enter temporarily, and more express provisions on federal-state cooperation in immigration enforcement.

Numerous cases underscore the sweeping nature of the powers of the Federal Government to exclude aliens and to deport aliens by administrative process. For example, in United States ex rel. Knauff v. Shaughnessy,1391 an order of the Attorney General excluding, on the basis of confidential information he would not disclose, a wartime bride, who was prima facie entitled to enter the United States,1392 was held to be unreviewable by the courts. Nor were regulations on which the order was based invalid as an undue delegation of legislative power. “Normally Congress supplies the conditions of the privilege of entry into the United States. But because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power, e.g., as was done here, for the best interests of the country during a time of national emergency. Executive officers may be entrusted with the duty of specifying the procedures for carrying out the congressional intent.”1393 However, when Congress has spelled out the basis for exclusion or deportation, the Court remains free to interpret the statute and review the administration of it and to apply it, often in a manner to mitigate the effects of the law on aliens.1394

Congress’s power to admit aliens under whatever conditions it lays down is exclusive of state regulation. The states “can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states. State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with this constitutionally derived federal power to regulate immigration, and have accordingly been held invalid.”1395 This principle, however, has not precluded all state regulations dealing with aliens.1396 The power of Congress to legislate with respect to the conduct of alien residents is a concomitant of its power to prescribe the terms and conditions on which they may enter the United States, to establish regulations for sending out of the country such aliens as have entered in violation of law, and to commit the enforcement of such conditions and regulations to executive officers. It is not a power to lay down a special code of conduct for alien residents or to govern their private relations.1397

Yet Congress is empowered to assert a considerable degree of control over aliens after their admission to the country. By the Alien Registration Act of 1940, Congress provided that all aliens in the United States, fourteen years of age and over, should submit to registration and finger printing and willful failure to comply was made a criminal offense against the United States.1398 This Act, taken in conjunction with other laws regulating immigration and naturalization, has constituted a comprehensive and uniform system for the regulation of all aliens.1399

An important benefit of this comprehensive, uniform regulation accruing to the alien is that it generally has precluded state regulation that may well be more severe and burdensome.1400 For example, in Hines v. Davidowitz,1401 the Court voided a Pennsylvania law requiring the annual registration and fingerprinting of aliens but going beyond the subsequently enacted federal law to require acquisition of an alien identification card that had to be carried at all times and to be exhibited to any police officer upon demand and to other licensing officers upon applications for such things as drivers’ licenses.1402

Another decision voided a Pennsylvania law limiting those eligible to welfare assistance to citizens and an Arizona law prescribing a fifteen-year durational residency period before an alien could be eligible for welfare assistance.1403 Congress had provided, Justice Blackmun wrote for a unanimous Court, that persons who were likely to become public charges could not be admitted to the United States and that any alien who became a public charge within five years of his admission was to be deported unless he could show that the causes of his economic situation arose after his entry.1404 Thus, in effect Congress had declared that lawfully admitted resident aliens who became public charges for causes arising after their entry were entitled to the full and equal benefit of all laws for the security of persons and property and the states were disabled from denying aliens these benefits.1405

Deportation

Unlike the exclusion proceedings,1406 deportation proceedings afford the alien a number of constitutional rights: a right against self-incrimination,1407 protection against unreasonable searches and seizures,1408 guarantees against ex post facto laws, bills of attainder, and cruel and unusual punishment,1409 a right to bail,1410 a right to procedural due process,1411 a right to counsel,1412 a right to notice of charges and hearing,1413 and a right to cross-examine.1414

Notwithstanding these guarantees, the Supreme Court has upheld a number of statutory deportation measures as not unconstitutional. The Internal Security Act of 1950, in authorizing the Attorney General to hold in custody, without bail, aliens who are members of the Communist Party of the United States, pending determination as to their deportability, is not unconstitutional.1415 Nor was it unconstitutional to deport under the Alien Registration Act of 19401416 a legally resident alien because of membership in the Communist Party, although such membership ended before the enactment of the Act. Such application of the Act did not make it ex post facto, being but an exercise of the power of the United States to terminate its hospitality ad libitum.1417 And a statutory provision1418 making it a felony for an alien against whom a specified order of deportation is outstanding “to willfully fail or refuse to make timely application for travel or other documents necessary to his departure” was not on its face void for “vagueness.”1419 An alien unlawfully in the country “has no constitutional right to assert selective enforcement as a defense against his deportation.”1420

BANKRUPTCY
Persons Who May Be Released From Debt

In an early case on circuit, Justice Livingston suggested that inasmuch as the English statutes on the subject of bankruptcy from the time of Henry VIII down had applied only to traders it might “well be doubted, whether an act of Congress subjecting to such a law every description of persons within the United States, would comport with the spirit of the powers vested in them in relation to this subject.”1421 Neither Congress nor the Supreme Court has ever accepted this limited view. The first bankruptcy law, passed in 1800, departed from the English practice to the extent of including bankers, brokers, factors, and underwriters as well as traders.1422 Asserting that the narrow scope of the English statutes was a mere matter of policy, which by no means entered into the nature of such laws, Justice Story defined bankruptcy legislation in the sense of the Constitution as a law making provisions for cases of persons failing to pay their debts.1423

This interpretation has been ratified by the Supreme Court. In Hanover National Bank v. Moyses,1424 it held valid the Bankruptcy Act of 1898, which provided that persons other than traders might become bankrupts and that this might be done on voluntary petition. The Court has given tacit approval to the extension of the bankruptcy laws to cover practically all classes of persons and corporations,1425 including even municipal corporations1426 and wage-earning individuals. The Bankruptcy Act has, in fact been amended to provide a wage-earners’ extension plan to deal with the unique problems of debtors who derive their livelihood primarily from salaries or commissions. In furthering the implementation of this plan, the Supreme Court has held that a wage earner may make use of it, notwithstanding the fact he has been previously discharged in bankruptcy within the last six years.1427

Liberalization of Relief Granted and Expansion of the Rights of the Trustee

As the coverage of the bankruptcy laws has been expanded, the scope of the relief afforded to debtors has been correspondingly enlarged. The act of 1800, like its English antecedents, was designed primarily for the benefit of creditors. Beginning with the act of 1841, which opened the door to voluntary petitions, rehabilitation of the debtor has become an object of increasing concern to Congress. An adjudication in bankruptcy is no longer requisite to the exercise of bankruptcy jurisdiction. In 1867, the debtor for the first time was permitted, either before or after adjudication of bankruptcy, to propose terms of composition that would become binding upon acceptance by a designated majority of his creditors and confirmation by a bankruptcy court. This measure was held constitutional,1428 as were later acts, which provided for the reorganization of corporations that are insolvent or unable to meet their debts as they mature,1429 and for the composition and extension of debts in proceedings for the relief of individual farmer debtors.1430

Nor is the power of Congress limited to adjustment of the rights of creditors. The Supreme Court has also ruled that the rights of a purchaser at a judicial sale of the debtor’s property are within reach of the bankruptcy power, and may be modified by a reasonable extension of the period for redemption from such sale.1431 Moreover, the Court expanded the bankruptcy court’s power over the property of the estate by affording the trustee affirmative relief on counterclaim against a creditor filing a claim against the estate.1432

Underlying most Court decisions and statutes in this area is the desire to achieve equity and fairness in the distribution of the bankrupt’s funds.1433 United States v. Speers,1434 codified by an amendment to the Bankruptcy Act,1435 furthered this objective by strengthening the position of the trustee as regards the priority of a federal tax lien unrecorded at the time of bankruptcy.1436 The Supreme Court has held, in other cases dealing with the priority of various creditors’ claims, that claims arising from the tort of the receiver is an “actual and necessary” cost of administration,1437 that benefits under a nonparticipating annuity plan are not wages and are therefore not given priority,1438 and that when taxes are allowed against a bankrupt’s estate, penalties due because of the trustee’s failure to pay the taxes incurred while operating a bankrupt business are also allowable.1439 The Court’s attitude with regard to these and other developments is perhaps best summarized in the opinion in Continental Bank v. Rock Island Ry.,1440 where Justice Sutherland wrote, on behalf of a unanimous court: “[T]hese acts, far-reaching though they may be, have not gone beyond the limit of Congressional power; but rather have constituted extensions into a field whose boundaries may not yet be fully revealed.”1441

Constitutional Limitations on the Bankruptcy Power

In the exercise of its bankruptcy powers, Congress must not transgress the Fifth and Tenth Amendments. The Bankruptcy Act provides that use immunity may be granted “for persons required to submit to examination, to testify, or to provide information” in a bankruptcy case.1442 Congress may not take from a creditor specific property previously acquired from a debtor, nor circumscribe the creditor’s right to such an unreasonable extent as to deny him due process of law;1443 this principle, however, is subject to the Supreme Court’s finding that a bankruptcy court has summary jurisdiction for ordering the surrender of voidable preferences when the trustee successfully counterclaims to a claim filed by the creditor receiving such preferences.1444

Because Congress may not supersede the power of a state to determine how a corporation shall be formed, supervised, and dissolved, a corporation that has been dissolved by a decree of a state court may not file a petition for reorganization under the Bankruptcy Act.1445 But Congress may impair the obligation of a contract and may extend the provisions of the bankruptcy laws to contracts already entered into at the time of their passage.1446 Although it may not subject the fiscal affairs of a political subdivision of a state to the control of a federal bankruptcy court,1447 Congress may empower such courts to entertain petitions by taxing agencies or instrumentalities for a composition of their indebtedness where the state has consented to the proceeding and the federal court is not authorized to interfere with the fiscal or governmental affairs of such petitioners.1448 Congress may recognize the laws of the state relating to dower, exemption, the validity of mortgages, priorities of payment and similar matters, even though such recognition leads to different results from state to state;1449 for, although bankruptcy legislation must be uniform, the uniformity required is geographic, not personal.

The power of Congress to vest the adjudication of bankruptcy claims in entities not having the constitutional status of Article III federal courts is unsettled. At least, it may not give to non-Article III courts the authority to hear state law claims made subject to federal jurisdiction only because of their relevance to a bankruptcy proceeding.1450

Constitutional Status of State Insolvency Laws: Preemption

Prior to 1898, Congress exercised the power to establish “uniform laws on the subject of bankruptcy” only intermittently. The first national bankruptcy law was not enacted until 1800 and was repealed in 1803; the second was passed in 1841 and was repealed two years later; a third was enacted in 1867 and repealed in 1878.1451 Thus, during the first eighty-nine years under the Constitution, a national bankruptcy law was in existence only sixteen years altogether. Consequently, the most important issue of interpretation that arose during that period concerned the effect of the clause on state law.

The Supreme Court ruled at an early date that, in the absence of congressional action, the states may enact insolvency laws, because it is not the mere existence of the power but rather its exercise that is incompatible with the exercise of the same power by the states.1452 Later cases settled further that the enactment of a national bankruptcy law does not invalidate state laws in conflict therewith but serves only to relegate them to a state of suspended animation with the result that upon repeal of the national statute they again come into operation without re-enactment.1453

A state, of course, has no power to enforce any law governing bankruptcies that impairs the obligation of contracts,1454 extends to persons or property outside its jurisdiction,1455 or conflicts with the national bankruptcy laws.1456 Giving effect to the policy of the federal statute, the Court has held that a state statute regulating this distribution of property of an insolvent was suspended by that law,

1457 and that a state court was without power to proceed with pending foreclosure proceedings after a farmer-debtor had filed a petition in federal bankruptcy court for a composition or extension of time to pay his debts.1458 A state court injunction ordering a defendant to clean up a waste-disposal site was held to be a “liability on a claim” subject to discharge under the bankruptcy law, after the state had appointed a receiver to take charge of the defendant’s property and comply with the injunction.1459 A state law governing fraudulent transfers was found to be compatible with the federal law.1460

Substantial disagreement has marked the actions of the Justices in one area, however, resulting in three five-to-four decisions first upholding and then voiding state laws providing that a discharge in bankruptcy was not to relieve a judgment arising out of an automobile accident upon pain of suffering suspension of his driver’s license.1461 The state statutes were all similar enactments of the Uniform Motor Vehicle Safety Responsibility Act, which authorizes the suspension of the license of any driver who fails to satisfy a judgment against himself growing out of a traffic accident; a section of the law specifically provides that a discharge in bankruptcy will not relieve the debtor of the obligation to pay and the consequence of license suspension for failure to pay. In the first two decisions, the Court majorities decided that the object of the state law was not to see that such judgments were paid but was rather a device to protect the public against irresponsible driving.1462 The last case rejected this view and held that the Act’s sole emphasis was one of providing leverage for the collection of damages from drivers and as such was in fact intended to and did frustrate the purpose of the federal bankruptcy law, the giving of a fresh start unhampered by debt.1463

If a state desires to participate in the assets of a bankruptcy, it must submit to the appropriate requirements of the bankruptcy court with respect to the filing of claims by a designated date. It cannot assert a claim for taxes by filing a demand at a later date.1464

Footnotes

1310
Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 162 (1892). [Back to text]
1311
Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). [Back to text]
1312
60 U.S. at 417. [Back to text]
1313
Mackenzie v. Hare, 239 U.S. 299, 311 (1915). [Back to text]
1314
Chirac v. Chirac, 15 U.S. (2 Wheat.) 259, 269 (1817); United States v. Wong Kim Ark, 169 U.S. 649, 701 (1898). [Back to text]
1315
The first naturalization act, 1 Stat. 103 (1790), so provided. See 8 U.S.C. § 1421. In Holmgren v. United States, 217 U.S. 509 (1910), the Court held that Congress may provide for the punishment of false swearing in the proceedings in state courts. [Back to text]
1316
Rosberg, Aliens and Equal Protection: Why Not the Right to Vote?, 75 MICH. L. REV. 1092 (1977). See Spragins v. Houghton, 3 Ill. 377 (1840); Stewart v. Foster, 2 Binn. (Pa.) 110 (1809). See also K. PORTER, A HISTORY OF SUFFRAGE IN THE UNITED STATES ch. 5 (1918). [Back to text]
1317
United States v. Macintosh, 283 U.S. 605 (1931). See also Fong Yue Ting v. United States, 149 U.S. 698, 707–08 (1893). Though Congress broadly controls the path to naturalization in the United States, it is restricted in conditioning the retention of citizenship so conferred. The Fourteenth Amendment declares persons born or naturalized in the United States to be citizens, and Congress may not distinguish among classes of “Fourteenth Amendment” citizens in setting rules for expatriation (assuming the absence of fraud in obtaining naturalization). Schneider v. Rusk, 377 U.S. 163 (1964). By contrast, Congress controls by statute who born abroad becomes a U.S. citizen at birth (based generally on the citizenship status of the parents), at times has conditioned this “statutory” citizenship on subsequent periodic residence in the United States, and has had relinquishment of citizenship for failure to meet this condition subsequent upheld by the Court. Rogers v. Bellei, 401 U.S. 815 (1971). [Back to text]
1318
1 Stat. 103 (1790). [Back to text]
1319
Act of July 14, 1870, § 7, 16 Stat. 254, 256. [Back to text]
1320
Act of May 6, 1882, § 1, 22 Stat. 58. The statute defined “Chinese laborers” to mean “both skilled and unskilled laborers and Chinese employed in mining.” 22 Stat. 61. [Back to text]
1321
Cf. Ozawa v. United States, 260 U.S. 178 (1922); United States v. Bhagat Singh Thind, 261 U.S. 204 (1923); Toyota v. United States, 268 U.S. 402 (1925); Morrison v. California, 291 U.S. 82 (1934). The Court refused to review the only case in which the constitutional issue was raised and rejected. Kharaiti Ram Samras v. United States, 125 F.2d 879 (9th Cir. 1942), cert. denied, 317 U.S. 634 (1942). [Back to text]
1322
The Alien and Sedition Act of 1798, 1 Stat. 570, empowered the President to deport any alien he found dangerous to the peace and safety of the Nation. In 1903, Congress provided for denial of naturalization and for deportation for mere belief in certain doctrines, i.e., anarchy. Act of March 3, 1903, 32 Stat. 1214. See United States ex rel. Turner v. Williams, 194 U.S. 279 (1904). The range of forbidden views was broadened in 1918 (Act of October 15, 1918, § 1, 40 Stat. 1012) and periodically thereafter. The present law is discussed in The Naturalization of Aliens, infra. [Back to text]
1323
E.g., 77 Stat. 5 (1963) (making Sir Winston Churchill an “honorary citizen of the United States”). [Back to text]
1324
Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 (1892); Contzen v. United States, 179 U.S. 191 (1900). [Back to text]
1325
Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 164, 168–69 (1892). [Back to text]
1326
United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). [Back to text]
1327
66 Stat. 235, 8 U.S.C. § 1401. [Back to text]
1328
§ 301(a)(1), 8 U.S.C. § 1401(a)(1). [Back to text]
1329
Rogers v. Bellei, 401 U.S. 815 (1971). [Back to text]
1330
Compare Schneider v. Rusk, 377 U.S. 163 (1964); Afroyim v. Rusk, 387 U.S. 253 (1967). It will be noted that in practically all cases persons statutorily made citizens at birth will be dual nationals, having the citizenship of the country where they were born. Congress has never required a citizen having dual nationality to elect at some point one and forsake the other but it has enacted several restrictive statutes limiting the actions of dual nationals which have occasioned much litigation. E.g., Savorgnan v. United States, 338 U.S. 491 (1950); Kawakita v. United States, 343 U.S. 717 (1952); Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Schneider v. Rusk, 377 U.S. 163 (1964); Rogers v. Bellei, 401 U.S. 815 (1971). [Back to text]
1331
Cf. Rogers v. Bellei, 401 U.S. 815, 836 (1971); Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Perez v. Brownell, 356 U.S. 44, 58–62 (1958). [Back to text]
1332
§ 311, 66 Stat. 239 (1952), 8 U.S.C. § 1422. [Back to text]
1333
§ 313(a), 66 Stat. 240 (1952), 8 U.S.C. § 1424(a). Whether “mere” membership is sufficient to constitute grounds for ineligibility is unclear. Compare Galvan v. Press, 347 U.S. 522 (1954), with Berenyi v. Immigration Director, 385 U.S. 630 (1967). [Back to text]
1334
§ 313(c), 66 Stat. 241 (1952), 8 U.S.C. § 1424(c). [Back to text]
1335
§ 316(a)(3), 66 Stat. 242, 8 U.S.C. § 1427(a)(3). [Back to text]
1336
§ 101(f)(1), 66 Stat. 172, 8 U.S.C. § 1101(f)(1). [Back to text]
1337
§ 101(f)(2), 66 Stat. 172, 8 U.S.C. § 1101(f)(2). [Back to text]
1338
§ 212(a)(11), 66 Stat. 182, 8 U.S.C. § 1182(a)(11). [Back to text]
1339
§ 101(f)(4) and (5), 66 Stat. 172, 8 U.S.C. § 1101(f)(4) and (5). [Back to text]
1340
§ 101(f)(7) and (8), 66 Stat. 172, 8 U.S.C. § 1101(f)(7) and (8). [Back to text]
1341
§ 212(a)(4), 66 Stat. 182, 8 U.S.C. § 1182(a)(4), barring aliens afflicted with “psychopathic personality,” “a term of art intended to exclude homosexuals from entry into the United States.” Boutilier v. Immigration and Naturalization Service, 387 U.S. 118, 119 (1967). [Back to text]
1342
§ 337(a), 66 Stat. 258 (1952), 8 U.S.C. § 1448(a). In United States v. Schwimmer, 279 U.S. 644 (1929), and United States v. MacIntosh, 283 U.S. 605 (1931), a divided Court held that clauses (3) and (4) of the oath, as then prescribed, required the candidate for naturalization to be willing to bear arms for the United States, thus disqualifying conscientious objectors. These cases were overturned, purely as a matter of statutory interpretation by Girouard v. United States, 328 U.S. 61 (1946), and Congress codified the result, 64 Stat. 1017 (1950), as it now appears in the cited statute. [Back to text]
1343
§ 340(a), 66 Stat. 260 (1952), 8 U.S.C. § 1451(a). See Kungys v. United States, 485 U.S. 759 (1988) (badly fractured Court opinion dealing with the statutory requirements in a denaturalization proceeding under this section). See also Johannessen v. United States, 225 U.S. 227 (1912). Congress has imposed no time bar applicable to proceedings to revoke citizenship, so that many years after naturalization has taken place a naturalized citizen remains subject to divestment upon proof of fraud. Costello v. United States, 365 U.S. 265 (1961); Polites v. United States, 364 U.S. 426 (1960); Knauer v. United States, 328 U.S. 654 (1946); Fedorenko v. United States, 449 U.S. 490 (1981). [Back to text]
1344
340(c), 66 Stat. 261 (1952), 8 U.S.C. § 1451(c). The time period had previously been five years. [Back to text]
1345
Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 737, 827 (1824). One must be aware, however, that this language does not appear in any case having to do with citizenship or naturalization or the rights of naturalized citizens and its force may be therefore questioned. Compare Afroyim v. Rusk, 387 U.S. 253, 261 (1967) (Justice Black for the Court: “a mature and well-considered dictum . . . ”), with id. at 275–76 (Justice Harlan dissenting: the dictum, “cannot have been intended to reach the question of citizenship”). The issue in Osborn was the right of the Bank to sue in federal court. Osborn had argued that the fact that the bank was chartered under the laws of the United States did not make any legal issue involving the bank one arising under the laws of the United States for jurisdictional purposes; to argue the contrary, Osborn contended, was like suggesting that the fact that persons were naturalized under the laws of Congress meant such persons had an automatic right to sue in federal courts, unlike natural-born citizens. The quoted language of Marshall’s rejects this attempted analogy. [Back to text]
1346
328 U.S. 654, 658 (1946). [Back to text]
1347
Johannessen v. United States, 225 U.S. 227 (1912); Knauer v. United States, 328 U.S. 654 (1946); Costello v. United States, 365 U.S. 265 (1961). [Back to text]
1348
See 8 U.S.C. § 1451(c). [Back to text]
1349
231 U.S. 9 (1913). The provision has been modified to reduce the period to one year. 8 U.S.C. § 1451(d). [Back to text]
1350
377 U.S. 163 (1964). [Back to text]
1351
377 U.S. at 165. [Back to text]
1352
Although there is no equal protection clause specifically applicable to the Federal Government, it is established that the Due Process Clause of the Fifth Amendment forbids discrimination in much the same manner as the Equal Protection Clause of the Fourteenth Amendment. In fact, “[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.” Buckley v. Valeo, 424 U.S. 1, 93 (1976). [Back to text]
1353
Schneider v. Rusk, 377 U.S. 163, 168–69 (1964). [Back to text]
1354
Afroyim v. Rusk, 387 U.S. 253 (1967). [Back to text]
1355
401 U.S. 815 (1971). [Back to text]
1356
401 U.S. at 835–36. [Back to text]
1357
At least, there is a difference so long as Afroyim prevents Congress from making expatriation the consequence of certain acts when done by natural born citizens as well. [Back to text]
1358
Perkins v. Elg, 307 U.S. 325 (1939). The qualifying phrase “absent a treaty or statute . . . ” is error now, so long as Afroyim remains in effect. But note Rogers v. Bellei, 401 U.S. 815, 832–833 (1971). [Back to text]
1359
Governeur v. Robertson, 24 U.S. (11 Wheat.) 332 (1826); Osterman v. Baldwin, 73 U.S. (6 Wall.) 116 (1867); Manuel v. Wulff, 152 U.S. 505 (1894). [Back to text]
1360
Shanks v. DuPont, 28 U.S. (3 Pet.) 242, 246 (1830). [Back to text]
1361
2 J. KENT, COMMENTARIES 49–50 (1827). [Back to text]
1362
J. TENBROEK, ANTI-SLAVERY ORIGINS OF THE FOURTEENTH AMENDMENT 71–94 (1951); see generally J. ROCHE, THE EARLY DEVELOPMENT OF UNITED STATES CITIZENSHIP (1949). [Back to text]
1363
Act of July 27, 1868, 15 Stat. 223. While the Act’s preamble rhetorically proclaims the “natural and inherent right of all people” to expatriate themselves, its title is “An Act concerning the Rights of American Citizens in foreign States” and its operative parts are concerned with that subject. It has long been taken, however, as a general proclamation of United States recognition of the right of United States citizens to expatriate themselves. Mackenzie v. Hare, 239 U.S. 299, 309 (1915); Mandoli v. Acheson, 344 U.S. 133, 135–36 (1952). Cf. Savorgnan v. United States, 338 U.S. 491, 498 n.11 (1950). [Back to text]
1364
The Enrollment Act of March 3, 1865, § 21, 13 Stat. 487, 490. The language of the section appears more consistent with a deprivation of civil rights than of citizenship. Note also that § 14 of the Wade-Davis Bill, pocket-vetoed by President Lincoln, specifically provided that any person holding office in the Confederate Government “is hereby declared not to be a citizen of the United States.” 6 J. RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS 223 (1899). [Back to text]
1365
Nationality Act of 1940, 54 Stat. 1169. [Back to text]
1366
Id. [Back to text]
1367
58 Stat. 746 (1944). [Back to text]
1368
68 Stat. 1146 (1954). [Back to text]
1369
34 Stat. 1228 (1907), repealed by 42 Stat. 1021 (1922). [Back to text]
1370
Perkins v. Elg, 307 U.S. 325, 334 (1939). [Back to text]
1371
Mackenzie v. Hare, 239 U.S. 299, 309, 311–12 (1915); Savorgnan v. United States, 338 U.S. 491, 506 (1950). [Back to text]
1372
34 Stat. 1228 (1907). [Back to text]
1373
Mackenzie v. Hare, 239 U.S. 299 (1915). [Back to text]
1374
See generally 8 U.S.C. §§ 14811489. Among the acts for which loss of citizenship is prescribed are (1) obtaining naturalization in a foreign state, (2) taking an oath of allegiance to a foreign state, (3) serving in the armed forces of a foreign state without authorization and with consequent acquisition of foreign nationality, (4) assuming public office under the government of a foreign state for which only nationals of that state are eligible, (5) voting in an election in a foreign state, (6) formally renouncing citizenship before a United States foreign service officer abroad, (7) formally renewing citizenship within the United States in time of war, subject to approval of the Attorney General, (8) being convicted and discharged from the armed services for desertion in wartime, (9) being convicted of treason or of an attempt to overthrow forcibly the Government of the United States, (10) fleeing or remaining outside the United States in wartime or a proclaimed emergency in order to evade military service, and (11) residing abroad if a naturalized citizen, subject to certain exceptions, for three years in the country of his birth or in which he was formerly a national or for five years in any other foreign state. Several of these sections have been declared unconstitutional, as explained in the text. [Back to text]
1375
Perez v. Brownell, 356 U.S. 44 (1958). For the Court, Justice Frankfurter sustained expatriation as a necessary exercise of the congressional power to regulate the foreign relations of the United States to prevent the embarrassment and potential for trouble inherent in our nationals voting in foreign elections. Justice Whittaker dissented because he saw no problem of embarrassment or potential trouble if the foreign state permitted aliens or dual nationals to vote. Chief Justice Warren and Justices Black and Douglas denied that expatriation is within Congress’s power to prescribe for an act, like voting, which is not necessarily a sign of intention to relinquish citizenship. [Back to text]
1376
Trop v. Dulles, 356 U.S. 86 (1958). Chief Justice Warren for himself and three Justices held that expatriation for desertion was a cruel and unusual punishment proscribed by the Eighth Amendment. Justice Brennan concurred on the ground of a lack of the requisite relationship between the statute and Congress’s war powers. For the four dissenters, Justice Frankfurter argued that Congress had power to impose loss of citizenship for certain activity and that there was a rational nexus between refusal to perform a duty of citizenship and deprivation of citizenship. Justice Frankfurter denied that the penalty was cruel and unusual punishment and denied that it was punishment at all “in any valid constitutional sense.” Id. at 124. [Back to text]
1377
Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). For the Court Justice Goldberg held that penal expatriation effectuated solely by administrative determination violated due process because of the absence of procedural safeguards. Justices Black and Douglas continued to insist Congress could not deprive a citizen of his nationality at all. Justice Harlan for the dissenters thought the statute a valid exercise of Congress’s war powers but the four dissenters divided two-to-two on the validity of a presumption spelled out in the statute. [Back to text]
1378
Schneider v. Rusk, 377 U.S. 163 (1964). [Back to text]
1379
387 U.S. 253 (1967). [Back to text]
1380
Justice Harlan, for himself and Justices Clark, Stewart, and White, argued in dissent that there was no evidence that the drafters of the Fourteenth Amendment had at all the intention ascribed to them by the majority. He would have found in Afroyim’s voluntary act of voting in a foreign election a voluntary renunciation of United States citizenship. 387 U.S. at 268. [Back to text]
1381
Rogers v. Bellei, 401 U.S. 815 (1971). The three remaining Afroyim dissenters plus Chief Justice Burger and Justice Blackmun made up the majority, the three remaining Justices of the Afroyim majority plus Justice Marshall made up the dissenters. The continuing vitality of Afroyim was assumed in Vance v. Terrazas, 444 U.S. 252 (1980), in which a divided Court upheld a congressionally imposed standard of proof, preponderance of evidence, by which to determine whether one had by his actions renounced his citizenship. [Back to text]
1382
Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581, 603, 604 (1889); see also Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893); The Japanese Immigrant Case (Yamataya v. Fisher), 189 U.S. 86 (1903); United States ex rel. Turner v. Williams, 194 U.S. 279 (1904); Bugajewitz v. Adams, 228 U.S. 585 (1913); Hines v. Davidowitz, 312 U.S. 52 (1941); Kleindienst v. Mandel, 408 U.S. 753 (1972). In Galvan v. Press, 347 U.S. 522, 530–531 (1954), Justice Frankfurter for the Court wrote: “[M]uch could be said for the view, were we writing on a clean slate, that the Due Process Clause qualifies the scope of political discretion heretofore recognized as belonging to Congress in regulating the entry and deportation of aliens. . . . But the slate is not clean. As to the extent of the power of Congress under review, there is not merely ‘a page of history,’ . . . but a whole volume. . . . [T]hat the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.” Although the issue of racial discrimination was before the Court in Jean v. Nelson, 472 U.S. 846 (1985), in the context of parole for undocumented aliens, the Court avoided it, holding that statutes and regulations precluded INS considerations of race or national origin. Justices Marshall and Brennan, in dissent, argued for reconsideration of the long line of precedents and for constitutional restrictions on the government. Id. at 858. That there exists some limitation upon exclusion of aliens is one permissible interpretation of Reagan v. Abourezk, 484 U.S. 1 (1987), aff’g by an equally divided Court, 785 F.2d 1043 (D.C. Cir. 1986), holding that mere membership in the Communist Party could not be used to exclude an alien on the ground that his activities might be prejudicial to the interests of the United States. The power of Congress to prescribe the rules for exclusion or expulsion of aliens is a “fundamental sovereign attribute” which is “of a political character and therefore subject only to narrow judicial review.” Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n.21 (1976); Mathews v. Diaz, 426 U.S. 67, 81–82 (1976); Fiallo v. Bell, 430 U.S. 787, 792 (1977). Although aliens are “an identifiable class of persons,” who aside from the classification at issue “are already subject to disadvantages not shared by the remainder of the community,” Hampton v. Mow Sun Wong, 426 U.S. at 102, Congress may treat them in ways that would violate the Equal Protection Clause if a state should do it. Diaz (residency requirement for welfare benefits); Fiallo (sex and illegitimacy classifications). Nonetheless in Mow Sun Wong, 426 U.S. at 103, the Court observed that when the Federal Government asserts an overriding national interest as justification for a discriminatory rule that would violate the Equal Protection Clause if adopted by a state, due process requires that it be shown that the rule was actually intended to serve that interest. The case struck down a classification that the Court thought justified by the interest asserted but that had not been imposed by a body charged with effectuating that interest. See Vergara v. Hampton, 581 F.2d 1281 (7th Cir. 1978). See Sale v. Haitian Centers Council, 509 U.S. 155 (1993) (construing statutes and treaty provisions restrictively to affirm presidential power to interdict and seize fleeing aliens on high seas to prevent them from entering U.S. waters). [Back to text]
1383
Act of June 25, 1798, 1 Stat. 570. The Act was part of the Alien and Sedition Laws and authorized the expulsion of any alien the President deemed dangerous. [Back to text]
1384
Act of March 3, 1875, 18 Stat. 477. [Back to text]
1385
22 Stat. 214 (1882) (excluding idiots, lunatics, convicts, and persons likely to become public charges); 23 Stat. 332 (1885), and 24 Stat. 414 (1887) (regulating importing cheap foreign labor); 26 Stat. 1084 (1891) (persons suffering from certain diseases, those convicted of crimes involving moral turpitude, paupers, and polygamists); 32 Stat. 1213 (1903) (epileptics, insane persons, professional beggars, and anarchists); 34 Stat. 898 (1907) (feeble-minded, children unaccompanied by parents, persons suffering with tuberculosis, and women coming to the United States for prostitution or other immoral purposes). [Back to text]
1386
Act of May 6, 1882, 22 Stat. 58. [Back to text]
1387
Act of December 17, 1943, 57 Stat. 600. [Back to text]
1388
Act of May 26, 1924, 43 Stat. 153. [Back to text]
1389
Act of October 3, 1965, Pub. L. 89–236, 79 Stat. 911. [Back to text]
1390
Act of June 27, 1952, Pub. L. 82–414, 66 Stat. 163, 8 U.S.C. §§ 1101et seq. as amended. [Back to text]
1391
338 U.S. 537 (1950). See also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), in which the Court majority upheld the Government’s power to exclude on the basis of information it would not disclose a permanent resident who had gone abroad for about nineteen months and was seeking to return on a new visa. But the Court will frequently read the applicable statutes and regulations strictly against the government for the benefit of persons sought to be excluded. Cf. Delgadillo v. Carmichael, 332 U.S. 388 (1947); Kwong Hai Chew v. Colding, 344 U.S. 590 (1953); Rosenburg v. Fleuti, 374 U.S. 449 (1963). [Back to text]
1392
Under the War Brides Act of 1945, 59 Stat. 659. [Back to text]
1393
338 U.S. at 543. [Back to text]
1394
E.g., Immigration and Naturalization Service v. Errico, 385 U.S. 214 (1966). [Back to text]
1395
Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419 (1948); De Canas v. Bica, 424 U.S. 351, 358 n.6 (1976); Toll v. Moreno, 458 U.S. 1, 12–13 (1982). See also Hines v. Davidowitz, 312 U.S. 52, 66 (1941); Graham v. Richardson, 403 U.S. 365, 376–380 (1971). [Back to text]
1396
E.g., Heim v. McCall, 239 U.S. 175 (1915); Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392 (1927); Sugarman v. Dougall, 413 U.S. 634, 646–49 (1973); De Canas v. Bica, 424 U.S. 351 (1976); Cabell v. Chavez-Salido, 454 U.S. 432 (1982). See also Chamber of Commerce of the United States v. Whiting, 563 U.S. ___, No. 09–115, slip op. (2011). [Back to text]
1397
Purporting to enforce this distinction, the Court voided a statute, which, in prohibiting the importation of “any alien woman or girl for the purpose of prostitution,” provided that whoever should keep for the purpose of prostitution “any alien woman or girl within three years after she shall have entered the United States” should be deemed guilty of a felony. Keller v. United States, 213 U.S. 138 (1909). [Back to text]
1398
54 Stat. 670, 8 U.S.C. §§ 13011306. [Back to text]
1399
See Hines v. Davidowitz, 312 U.S. 52, 69–70 (1941). [Back to text]
1400
In the 1990s, Congress began giving the states a larger role in the enforcement of federal immigration law. During this period, Congress also broadened the states’ authority to deny aliens state benefits. Still, in the 2000s, states increasingly asserted greater independent authority to deter the presence of illegal aliens within their borders, both through curtailing benefits and assuming a more active role in direct immigration enforcement. Most of these efforts foundered under court challenge, but some did not, resulting, in at least one instance, in the imposition of more severe consequences under state law than under federal law for similar immigration violations. See Chamber of Commerce of the United States v. Whiting, 563 U.S. ___, No. 09–115, slip op. (2011). Nevertheless, the Whiting Court found a textual basis in federal statute for the state sanctions imposed there. Absent text-based authority for separate state penalties for federal immigration violations, those state penalties likely will fail on preemption grounds. Arizona v. United States, 567 U.S. ___, No. 11–182, slip op. (2012) (invalidating state sanctions on unauthorized aliens seeking work in violation of federal law and striking state penalties for violations of federal alien registration requirements). It would further appear that states must ground their efforts to detect, arrest, and remove unauthorized aliens in authority delegated by Congress. Id. [Back to text]
1401
312 U.S. 52 (1941). [Back to text]
1402
312 U.S. at 68. The Court did not squarely hold the state incapable of having such a law in the absence of federal law but appeared to lean in that direction. State sanctions for violating federal alien registration laws were overturned in Arizona v. United States, at least in part because the state penalties were greater than those under federal law for the same violation. But see De Canas v. Bica, 424 U.S. 351 (1976), in which the Court, ten years prior to enactment of federal employer sanctions, upheld a state law prohibiting an employer from hiring aliens not entitled to lawful residence in the United States. The Court wrote that states may enact legislation touching upon aliens coexistent with federal laws, under regular preemption standards, unless the nature of the regulated subject matter precludes the conclusion or unless Congress has unmistakably ordained the impermissibility of state law. For examples of state sanctions against unauthorized aliens that have been struck on preemption grounds, see Arizona v. United States, 567 U.S. ___, No. 11–182, slip op. (2012). [Back to text]
1403
Graham v. Richardson, 403 U.S. 365 (1971). See also Sugarman v. Dougall, 413 U.S. 634 (1973); In re Griffiths, 413 U.S. 717 (1973); Cabell v. Chavez-Salido, 454 U.S. 432 (1982). [Back to text]
1404
8 U.S.C. §§ 1182(a)(8), 1182(a)(15), 1251(a)(8). [Back to text]
1405
See 42 U.S.C. § 1981, applied in Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419 n.7 (1948). [Back to text]
1406
See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950), where the Court noted that “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” [Back to text]
1407
Kimm v. Rosenberg, 363 U.S. 405 (1960). [Back to text]
1408
Abel v. United States, 362 U.S. 217, 229 (1960). [Back to text]
1409
Marcello v. Bonds, 349 U.S. 302 (1955). [Back to text]
1410
Carlson v. Landon, 342 U.S. 524, 540 (1952). [Back to text]
1411
Wong Yang Sung v. McGrath, 339 U.S. 33, 49 (1950). See discussion of aliens’ due process rights under the Fifth Amendment, Aliens: Entry and Deportation. [Back to text]
1412
8 U.S.C. § 1252(b)(2). [Back to text]
1413
8 U.S.C. § 1252(b)(1). [Back to text]
1414
8 U.S.C. § 1252(b)(3). [Back to text]
1415
Carlson v. Landon, 342 U.S. 524 (1952). In Reno v. Flores, 507 U.S. 292 (1993), the Court upheld an INS regulation providing for the ongoing detention of juveniles apprehended on suspicion of being deportable, unless parents, close relatives, or legal guardians were available to accept release, as against a substantive due process attack. [Back to text]
1416
54 Stat. 670. For existing statutory provisions as to deportation, see 8 U.S.C. §§ 1251et seq. [Back to text]
1417
Carlson v. Landon, 342 U.S. 524 (1952). [Back to text]
1418
8 U.S.C. § 1252(e). [Back to text]
1419
United States v. Spector, 343 U.S. 169 (1952). [Back to text]
1420
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 488 (1999). [Back to text]
1421
Adams v. Storey, 1 Fed. Cas. 141, 142 (No. 66) (C.C.D.N.Y. 1817). [Back to text]
1422
2 Stat. 19 (1800). [Back to text]
1423
2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1113 (1833). [Back to text]
1424
186 U.S. 181 (1902). [Back to text]
1425
Continental Bank v. Rock Island Ry., 294 U.S. 648, 670 (1935). [Back to text]
1426
United States v. Bekins, 304 U.S. 27 (1938), distinguishing Ashton v. Cameron County Dist., 298 U.S. 513 (1936). [Back to text]
1427
Perry v. Commerce Loan Co., 383 U.S. 392 (1966). [Back to text]
1428
In re Reiman, 20 Fed. Cas. 490 (No. 11,673) (D.C.S.D.N.Y. 1874), cited with approval in Continental Bank v. Rock Island Ry., 294 U.S. 648, 672 (1935). [Back to text]
1429
Continental Bank v. Rock Island Ry., 294 U.S. 648 (1935). [Back to text]
1430
Wright v. Vinton Branch, 300 U.S. 440 (1937); Adair v. Bank of America Ass’n, 303 U.S. 350 (1938). [Back to text]
1431
Wright v. Union Central Ins. Co., 304 U.S. 502 (1938). [Back to text]
1432
Katchen v. Landy, 382 U.S. 323 (1966). [Back to text]
1433
Bank of Marin v. England, 385 U.S. 99, 103 (1966). [Back to text]
1434
382 U.S. 266 (1965). Cf. United States v. Vermont, 337 U.S. 351 (1964). [Back to text]
1435
Act of July 5, 1966, 80 Stat. 269, 11 U.S.C. § 501, repealed. [Back to text]
1436
382 U.S. at 271–72. [Back to text]
1437
Reading Co. v. Brown, 391 U.S. 471 (1968). [Back to text]
1438
Joint Industrial Bd. v. United States, 391 U.S. 224 (1968). [Back to text]
1439
Nicholas v. United States, 384 U.S. 678 (1966). [Back to text]
1440
294 U.S. 648 (1935). [Back to text]
1441
294 U.S. at 671. [Back to text]
1442
11 U.S.C. § 344. [Back to text]
1443
Louisville Bank v. Radford, 295 U.S. 555, 589, 602 (1935). [Back to text]
1444
Katchen v. Landy, 382 U.S. 323, 327–40 (1966). [Back to text]
1445
Chicago Title and Trust Co. v. Wilcox Bldg. Corp., 302 U.S. 120 (1937). [Back to text]
1446
In re Klein, 42 U.S. (1 How.) 277 (1843); Hanover National Bank v. Moyses, 186 U.S. 181 (1902). [Back to text]
1447
Ashton v. Cameron County Dist., 298 U.S. 513 (1936). See also United States v. Bekins, 304 U.S. 27 (1938). [Back to text]
1448
United States v. Bekins, 304 U.S. 27 (1938). [Back to text]
1449
Stellwagon v. Clum, 245 U.S. 605 (1918); Hanover National Bank v. Moyses, 186 U.S. 181, 190 (1902). [Back to text]
1450
Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982). See also Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989) (Seventh Amendment right to jury trial in bankruptcy cases). [Back to text]
1451
Hanover National Bank v. Moyses, 186 U.S. 181, 184 (1902). [Back to text]
1452
Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 199 (1819); Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 368 (1827). [Back to text]
1453
Tua v. Carriere, 117 U.S. 201 (1886); Butler v. Goreley, 146 U.S. 303, 314 (1892). [Back to text]
1454
Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819). [Back to text]
1455
Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 368 (1827); Denny v. Bennett, 128 U.S. 489, 498 (1888); Brown v. Smart, 145 U.S. 454 (1892). [Back to text]
1456
In re Watts and Sachs, 190 U.S. 1, 27 (1903); International Shoe Co. v. Pinkus, 278 U.S. 261, 264 (1929). [Back to text]
1457
International Shoe Co. v. Pinkus, 278 U.S. 261, 265 (1929). [Back to text]
1458
Kalb v. Feurerstein, 308 U.S. 433 (1940). [Back to text]
1459
Ohio v. Kovacs, 469 U.S. 274 (1985). Compare Kelly v. Robinson, 479 U.S. 36 (1986) (restitution obligations imposed as conditions of probation in state criminal actions are nondischargeable in proceedings under chapter 7), with Pennsylvania Dep’t of Public Welfare v. Davenport, 495 U.S. 552 (1990) (restitution obligations imposed as condition of probation in state criminal actions are dischargeable in proceedings under chapter 13). [Back to text]
1460
Stellwagon v. Clum, 245 U.S. 605, 615 (1918). [Back to text]
1461
Reitz v. Mealey, 314 U.S. 33 (1941); Kesler v. Department of Pub. Safety, 369 U.S. 153 (1962); Perez v. Campbell, 402 U.S. 637 (1971). [Back to text]
1462
Reitz v. Mealey, 314 U.S. 33, 37 (1941); Kesler v. Department of Public Safety, 369 U.S. 153, 169–74 (1962). [Back to text]
1463
Perez v. Campbell, 402 U.S. 637, 644–48, 651–54 (1971). The dissenters, Justice Blackmun for himself and Chief Justice Burger and Justices Harlan and Stewart, argued, in line with the Reitz and Kesler majorities, that the provision at issue was merely an attempt to assure driving competence and care on the part of its citizens and had only tangential effect upon bankruptcy. [Back to text]
1464
New York v. Irving Trust Co., 288 U.S. 329 (1933). [Back to text]