Expatriation Act of 1907

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Expatriation Act of 1907
Great Seal of the United States
Long title Act relating to expatriation of citizens and their protection abroad; citizenship of women by marriage; citizenship of children born abroad of citizen fathers[1]
Enacted by the 59th United States Congress
Effective March 2, 1907
Citations
Statutes at Large 34 Stat. 1228
Legislative history

The Expatriation Act of 1907 (59th Congress, 2nd session, chapter 2534, enacted March 2, 1907) was an act of the 59th United States Congress concerning retention and relinquishment of United States nationality by married women and Americans residing abroad. It effectively functioned as Congressional endorsement of the various ad hoc rulings on loss of United States nationality that had been made by the State Department since the passage of the Expatriation Act of 1868.[2] Some sections of it were repealed by other acts in the early 1920s; those sections which remained were codified at 8 U.S.C. §§ 617, but those too were repealed by the Nationality Act of 1940.[3][4]

Contents[edit]

The recommendations of U.S. Minister to the Netherlands David Jayne Hill (pictured) and his State Department colleagues formed the basis for Section 2 of the Expatriation Act of 1907.

The act contained seven sections, the last regarding rules of evidence for matters in the act, and the other six relating to citizenship and passports.[1][5]

Alien's passports[edit]

Section 1 provided for the issuance of non-renewable alien's passports of six months' validity to non-citizens who had lived in the United States for three years and had made a declaration of intention to become U.S. citizens. This provision was repealed by the Act of June 4, 1920 (41 Stat. 751, An Act Making appropriations for the Diplomatic and Consular Service for the fiscal year ending June 30, 1921).[6]

Americans residing abroad[edit]

Section 2 contained three grounds for loss of United States citizenship: naturalization in a foreign state, taking an oath of allegiance to a foreign state, or specifically for a naturalized citizen residing for two years in one's foreign state of origin or five years in any other foreign state; it also provided that citizenship could be lost only in peacetime.[1] It was repealed by Section 504 of the Nationality Act of 1940; however, a saving clause in the 1940 Act provided that nothing in that Act would affect the status of those who had already lost citizenship prior to its passage.[4][7]

The background of this section goes back to a 1906 recommendation by the House Committee on Foreign Affairs that the State Department form a commission of inquiry on the subject of nationality laws and their relation to US citizens living abroad. Acting Secretary of State Robert Bacon named international law expert James Brown Scott, Minister to the Netherlands David Jayne Hill, and Passports Bureau chief Gaillard Hunt to the commission.[8] Their report was published later that year.[9]

In addition to the provisions which actually ended up in the Act, the commission had also recommended that persons wishing to re-acquire US citizenship "be required to comply with the laws applicable to the naturalization of aliens". However, this was not adopted by Congress.[10] Another difference between the law and the previous practice of the State Department was that any oath to a foreign state became grounds for loss of US citizenship even if no foreign nationality was acquired by that oath.[11] Congress and the State Department were in agreement that loss of citizenship in wartime should not be permitted; this had been a long-standing principle in US law going all the way back to Talbot v. Janson in 1795, and Secretary of State Hamilton Fish had stated in the 1870s that permitting loss of citizenship in wartime "would be to afford a cover to desertion and treasonable aid to the public enemy."[12]

Married women[edit]

Section 3 provided for loss of citizenship by American women who married aliens.[1] Section 4 provided for retention of American citizenship by formerly alien women who had acquired citizenship by marriage to an American after the termination of their marriages. Women residing in the US would retain their American citizenship automatically if they did not explicitly renounce; women residing abroad would have the option to retain American citizenship by registration with a US.consul.[5] The aim of these provisions was to prevent cases of multiple nationality among women.[13] Nevertheless, these resulted in significant protests by members of the women's suffrage movement, and just two years after women gained the franchise, they were repealed by the Cable Act of 1922.[5][14] However, the Cable Act itself continued to provide for the loss of citizenship by American women who married "aliens ineligible to citizenship," namely Asians.[15]

In 2013, Daniel Swalm, the grandson of a Minnesota woman who had lost U.S. citizenship under Section 3 of the Expatriation Act of 1907 for marrying a Swedish immigrant and died without regaining her citizenship, began lobbying Congress to posthumously restore citizenship to women like his grandmother.[16] He contacted his senator Al Franken, who in 2014 sponsored a resolution (S.Res. 402) expressing regret for the passage of the 1907 Act.[17][18] The resolution passed the Senate on May 14.[19]

Children born abroad[edit]

Section 5 provided that child born abroad to alien parents could acquire U.S. citizenship upon the naturalization of their parents during their minority, once the minor child him or herself began to reside permanently in the U.S. Section 6 provided that children born abroad to U.S. citizen parents would be required to swear an oath of allegiance before a U.S. consul upon reaching the age of majority if they wished to retain U.S. citizenship.[5] Both sections were repealed by Section 504 of the Nationality Act of 1940.[4]

Case law[edit]

The Supreme Court first considered the Expatriation Act of 1907 in the 1915 case MacKenzie v. Hare. The plaintiff, a suffragist named Ethel MacKenzie, was living in California, which since 1911 had extended the franchise to women. However, she had been denied voter registration by the respondent in his capacity as a Commissioner of the San Francisco Board of Election on the grounds of her marriage to a Scottish man.[13] MacKenzie contended that the Expatriation Act of 1907 "if intended to apply to her, is beyond the authority of Congress", as neither the Fourteenth Amendment nor any other part of the Constitution gave Congress the power to "denationalize a citizen without his concurrence". However, Justice Joseph McKenna, writing the majority opinion, stated that while "[i]t may be conceded that a change of citizenship cannot be arbitrarily imposed, that is, imposed without the concurrence of the citizen", but "[t]he law in controversy does not have that feature. It deals with a condition voluntarily entered into, with notice of the consequences." Justice James Clark McReynolds, in a concurring opinion, stated that the case should be dismissed for lack of jurisdiction.[20]

In 1950, the Supreme Court ruled on Savorgnan v. United States. The Expatriation Act of 1907 had been repealed for nearly a decade by that point, but the case concerned a woman who married an Italian man on December 26, 1940 (after the passage of the Nationality Act of 1940, but before its effective date) and then applied for naturalization as an Italian citizen, all while still living in the United States. She later lived in Italy from 1941 to 1945, after the 1940 Act had taken effect. Justice Harold Hitz Burton, writing the majority opinion, reversed the District Court and found that the petitioner had indeed lost U.S. citizenship. His ruling, though it relied primarily on the Nationality Act of 1940, also made reference to the Expatriation Act of 1907. He rejected the petitioner's contention that Section 2 of the Act only resulted in loss of U.S. citizenship when the act of naturalization occurred on foreign soil, and held that it was irrelevant under the Act whether or not the petitioner had intended to renounce her U.S. citizenship by applying for the Italian one. However, he declined to rule on the Government's contention that the petitioner would have lost U.S. citizenship even if she had not taken up residence abroad, writing that "it is not necessary to determine here whether the petitioner's residence and naturalization are to be tested under the saving clause or under the rest of the Act of 1940".[7]

Notes[edit]

  1. ^ a b c d Tsiang 1942, p. 114
  2. ^ Tsiang 1942, p. 111
  3. ^ "1907:2534". United States Code, Table III. Office of the Law Revision Counsel. Retrieved 2012-10-30. 
  4. ^ a b c 54 Stat. 1172, 8 U.S.C. § 904. Available in scanned form on the website of the University of Washington Bothell.
  5. ^ a b c d Tsiang 1942, p. 115
  6. ^ Tsiang 1942, p. 114; see also the text of the 1920 Act on Wikisource.
  7. ^ a b Savorgnan v. United States, 70 S.Ct. 292, 94 L.Ed. 287 (1950).
  8. ^ Tsiang 1942, p. 104
  9. ^ Scott, Hill & Hunt 1906
  10. ^ Tsiang 1942, p. 105
  11. ^ Tsiang 1942, p. 108
  12. ^ Tsiang 1942, p. 107. US law has not always been consistent on this point; the Enrollment Act of 1865 provided for loss of citizenship during the Civil War.
  13. ^ a b Martin 2005
  14. ^ Bredbenner 1998, p. 47
  15. ^ Bredbenner 1998, p. 98
  16. ^ Rosario, Ruben (2013-03-23). "He wants grandma's citizenship restored". TwinCities.com. Retrieved 2014-04-14. 
  17. ^ Itkowitz, Colby (2014-04-03). "Franken: So sorry for that terrible law 100 years ago". The Washington Post. Retrieved 2014-04-14. 
  18. ^ Sandretsky, Lareesa (2014-04-07). "After a century, Minn. woman in line to receive posthumous apology from the US government". Minnesota West-Central Tribune. Retrieved 2014-04-14. 
  19. ^ Simon, Richard (2014-05-16). "Women who lost U.S. citizenship for marrying foreigners get apology". Los Angeles Times. Retrieved 2014-05-17. 
  20. ^ MacKenzie v. Hare, 239 U.S. 299, 17, 20, 22 (1915).

References[edit]

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