LOCATION: El Paso Natural Gas Co. Headquarters
DOCKET NO.: 456
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Second Circuit
CITATION: 387 US 253 (1967)
ARGUED: Feb 20, 1967
DECIDED: May 29, 1967
Facts of the case
After immigrating to the United States from Poland in 1912, Beys Afroyim became a naturalized American citizen in 1926. In 1950, Afroyim went to Israel where he voted in that country's 1951 governmental elections. In 1960, Afroyim applied for renewal a of his American passport. The State Department informed him that he had forfeited his American citizenship by virtue of Section 401(e) of the 1940 Nationality Act which stipulates that citizens of the United States shall "lose" their citizenship upon voting in a foreign state's political elections. Afroyim challenged the constitutionality of Section 401(e). On appeal from a district court's summary judgment favoring Secretary of State Dean Rusk, the Second Circuit Court of Appeals affirmed. The Supreme Court granted Afroyim certiorari.
Does Section 401(e) of the 1940 Nationality Act, revoking U.S. citizenship to persons who vote in other countries' elections, violate either the Fifth Amendment right to Due Process or the Fourteenth Amendment, under which naturalized citizens are granted national citizenship?
Media for Afroyim v. Rusk
Audio Transcription for Oral Argument - February 20, 1967 in Afroyim v. Rusk
Number 456, Afroyim, Petitioner, versus Dean Rusk, the Secretary of State.
Edward J. Ennis:
May it please the Court.
This case is here on a writ of certiorari to the United States Court of Appeals of the Second Circuit, which unanimously affirmed a summary judgment of the United States District Court for the Southern District of New York, holding that the petitioner had expatriated himself pursuant to the authority of 401 (e) of the Nationality Act of 1940 by the act of voting in an election in the State of Israel in 1951 for the legislature of the State of Israel.
This case was to be argued by the general counsel for the New York Civil Liberties Union Nanette Dembitz-Berman, who wrote the briefs in the case and it is Mrs. Berman's appointment as a judge of the family court of the City of New York that brings me here today.
She is very disappointed that she missed this opportunity to address the Court on this subject.
The facts are very simple and are stated in a stipulation of facts which appears in the record and -- at page 11 and are simply that the petitioner who was born in Poland in 1893, immigrated to the United States in 1912, was naturalized in 1926 and went to Israel in 1949, a year after that state was established in 1948.
And in 1951, he voted for the second Knesset, which was the second election of the legislature of Israel.
At that time indeed, when there was no Israeli citizenship at all and that everyone who voted in that election, voted on the basis of their residence in Israel.
Indeed, it was that legislature which a year later adopted the first Israeli law of nationality and established Israeli nationality.
The District Court, in the basis of the stipulation of facts in which it appeared that the petitioner voluntarily voted in that political election, stated that it was bound by the decision of this court in the Perez case in 1958 and held that he had lost his citizenship as indeed when he applied for a United States passport in 1960 to return to the United States, the consul in Israel so determined and the State Department approved that loss of citizenship and when he did return, he obtained a full hearing, which is part of the record, before the Passport Review Board which affirmed this loss of nationality and then he brought this -- this action.
The record does indicate that the man's profession, he was an artist by profession, a painter and sculptor, and indeed in this country, he has some of his paintings which are products of the WPA Art Program in some of our high schools and hospitals.
The case presents squarely the constitutionality of this Section 401 (e) of the Nationality Act of 1940, which is repeated in haec verba in Sections 349 of the present Immigration and Nationality Act.
Wouldn't the -- what you're asking is to overrule Perez?
Edward J. Ennis:
Over -- yes, overruled Perez, which is now.
Mr. Justice Harlan, when I -- I recognize the -- from the facts of the reargument that was ordered in Perez, the 100 pages of opinions on that -- in that case and the Trop case, the 75 of pages of opinion in the Mendoza case which followed a year -- few years later, in which again the court ordered rearguments.
When I read the opinions of the Court in those cases and read the records in the briefs, I must say I was nonplussed as to what I've read to the consideration of the Court of this -- again of this issue, which has been obviously so painstakingly considered by the Court.
In the short time that is available to me, I felt it would be bootless and of no assistance to the Court to try to review here the formulations of the applicable constitutional doctrine.
Most of the justices are sitting here have expressed themselves on the constitutional doctrine.
It occurred to me that in my short time, I might assist the Court by examining very briefly the two factual propositions which are, I submit, accepted by the majority of the Court in the present case and which I believe are factually false.
One of those propositions in which the Solicitor General bases his argument, one of those propositions is that for an American citizen to vote in a foreign election is an indication of some diminution of his allegiance to the United States and some adherence to a foreign allegiance.
The other proposition is that for an American citizen to so vote in a foreign election, in some way embroils the United States in foreign affairs or in some way exacerbates or makes more difficult the handling of foreign affairs.
I would submit to Your Honors very briefly that both of those propositions are factually inaccurate.
Now, as to the first proposition, that voting in the --
Can I interrupt you --
Edward J. Ennis:
Would you agree that the -- taking those two propositions that the constitutional question is this, whether Congress has the power to reasonably or rationally so conclude irrespective of what we or some others might think as the wisdom of the legislation.
Edward J. Ennis:
I agree -- subject to my basic constitutional position that where we're dealing with citizenship granted by the Fourteenth Amendment, a Congress has much less authority and indeed, my final proposition is that Congress has no authority, under the Constitution to remove United States citizenship that this can only be done by the voluntary act of the United States citizen and all that the power of Congress is, is to regulate the manner in which this voluntary expatriation shall be expressed.
Obviously, a man cannot put a note of expatriation on his desk floor and take it out when he wants to.
Congress can say that if you wish to adjure allegiance to the United States, if you're abroad, you must do it before a consul.