Yale philosophy professor Jason Stanley is rightly alarmed by the federal government’s position that naturalized Americans can lose their citizenship based on trivial misstatements to the Department of Homeland Security. But Stanley wrongly portrays that position, which was staked out by the Obama administration, as a product of Donald Trump’s special hostility to immigrants. The mistake illustrates the sadly familiar tendency to frame what should be critiques of government power as complaints about particular parties or politicians.
Writing in The New York Times, Stanley exaggerates the differences between Trump’s immigration policies and those of his predecessor, who was no slouch when it came to “exiling” people (as Stanley describes it). Still, Stanley correctly notes that Trump’s immigration enforcement guidelines have expanded the category of “criminals” given priority for deportation to include pretty much anyone living in the United States without the government’s permission. Where Stanley goes wrong is by tying that shift to a case the Supreme Court heard last Wednesday:
The administration’s hard line on the standard for criminalization has gone so far as to alarm several members of the Supreme Court, as demonstrated during an argument before the Court last week (Maslenjak v. United States), in which a Justice Department lawyer argued that, as The Times reported, “the government may revoke the citizenship of Americans who made even trivial misstatements in their naturalization proceedings,” including not disclosing a criminal offense of any kind, even if there was no arrest. To test the severity of that position, Chief Justice John G. Roberts, Jr., confessed to a crime—driving 60 miles an hour in a 55-mile-an-hour zone many years ago without being caught. He then asked if a person who had not disclosed such an incident in his citizenship application could have his citizenship revoked. The lawyer answered, yes. There was “indignation and incredulity” expressed by the members of the Court. Justice Anthony M. Kennedy told the lawyer, “Your argument is demeaning the priceless value of citizenship.” Roberts put it simply. If the administration has its way, he said, “the government will have the opportunity to denaturalize anyone they want.”
The issue in Maslenjak, as I explained last week, is whether you can “procure” citizenship “contrary to law,” an offense that triggers automatic denaturalization as well as up to 25 years in prison, by making a false statement that has no bearing on your application. According to the U.S. Court of Appeals for the 6th Circuit, you can. The Obama administration, in November 23 brief urging the Supreme Court to let that decision stand by decining to hear an appeal, said the 6th Circuit got it right. The offense of “knowingly procuring naturalization contrary to law,” said Acting Solicitor General Ian Heath Gershengorn, “does not require proof of materiality.” That means even an irrelevant fib—such as lying about your weight, as the government’s lawyer suggested during oral argument—can cost someone her citizenship.
It is hardly surprising that the Obama administration took that position, since the Justice Department made the same argument at trial and before the 6th Circuit. Federal prosecutors tend to prefer legal interpretations that make their job easier, no matter who happens to be sitting in the White House, and government officials, regardless of party, are inclined to read the law in a way that enhances their own authority. Those tendencies are a strong argument for clearer statutes and for erring on the side of giving the government less power to upend people’s lives. They are not an argument against Donald Trump per se. Don’t we have enough of those?
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