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


Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 162 (1892). [Back to text]
Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). [Back to text]
60 U.S. at 417. [Back to text]
Mackenzie v. Hare, 239 U.S. 299, 311 (1915). [Back to text]
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]
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]
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]
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]
1 Stat. 103 (1790). [Back to text]
Act of July 14, 1870, § 7, 16 Stat. 254, 256. [Back to text]
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]
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]
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]
E.g., 77 Stat. 5 (1963) (making Sir Winston Churchill an “honorary citizen of the United States”). [Back to text]
Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 (1892); Contzen v. United States, 179 U.S. 191 (1900). [Back to text]
Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 164, 168–69 (1892). [Back to text]