II.
Can Muthana’s Citizenship Be Revoked?
That Muthana was lawfully a citizen does not mean the government lacks the power to revoke her citizenship. But expatriation is limited to a hyper-specific set of cases spelled out at 8 U.S.C. § 1481(a), and none of those categories seem to apply here. Even 8 U.S.C. § 1481(a)(7), which allows expatriation of those who commit treason or other hostile acts against the U.S. government,
requires that they be “convicted thereof by a court martial or by a court of competent jurisdiction” before they can be expatriated. Needless to say, that hasn’t happened here.
More to the point, as I’ve written before, the Supreme Court has held, over and over again, that expatriation is not a punishment, but rather
a step the government may only take with the voluntary involvement of the (ex-)citizen. That is to say, the Constitution requires that the individual in question voluntarily and overtly relinquish their citizenship. Whatever missteps Muthana may have taken, and whatever crimes she may have committed, it’s hard to see the kind of voluntary intent the Supreme Court has previously required on the facts as they’re currently known.
III.
If Muthana Is a Citizen, Does She Have a Right To Return to the United States?
The Supreme Court has held that the government is allowed to revoke passports for national security or foreign policy reasons, so long as it provides due process. But
revoking a passport (to deny a right to travel abroad) is not the same thing as refusing the right of a citizen to return home. Although the Supreme Court has never squarely been presented with such a case, it seems likely that, in an appropriate case, the Court would recognize that
someone who is lawfully a citizen has the right to return to the United States. At the very least, it should have to follow from the passport cases that, even if the government has the right to prevent a citizen from returning to the United States, it must provide a significant amount of process in such cases.
And that leads to the most important point here: Although the State Department’s own Manual and regulations clearly outline a process for resolving disputes over citizenship, there is
no indication that any of those procedures have been followed here. Wish though they might, neither the Secretary of State nor even the President of the United States have the power to determine an individual’s citizenship by fiat. (Imagine if it were otherwise.)
Thus, although there is a factual dispute to be resolved over Muthana’s citizenship, and, if she is a citizen, a legal dispute to be resolved over whether she has a right to return to the United States, perhaps the most important takeaway from all of this is the extent to which the process is going to matter. Of course, folks may have a hard time feeling especially sympathetic to Muthana. But as Justice Frankfurter rightly put it, “the history of liberty has largely been the history of the observance of procedural safeguards.”
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Originally Posted by euphemia
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