Naturalization Power: Overview

[The Congress shall have Power . . . ] To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; . . .

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.” 1 Footnote
Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 162 (1892) . In the Dred Scott case,2 Footnote
Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) . the Court asserted that the power of Congress under this clause applies only to “persons born in a foreign country, under a foreign Government.” 3 Footnote
60 U.S. at 417 . 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.” 4 Footnote
Mackenzie v. Hare, 239 U.S. 299, 311 (1915) .

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.5 Footnote
Chirac v. Chirac, 15 U.S. (2 Wheat.) 259, 269 (1817) ; United States v. Wong Kim Ark, 169 U.S. 649, 701 (1898) . But power to naturalize aliens under federal standards may be, and was early, devolved by Congress upon state courts of record.6 Footnote
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. 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.7 Footnote
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) .

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,14 Footnote
E.g., 77 Stat. 5 (1963) (making Sir Winston Churchill an “honorary citizen of the United States” ). 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,15 Footnote
Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 (1892) ; Contzen v. United States, 179 U.S. 191 (1900) . or through treaty provision.16 Footnote
Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 164, 168–69 (1892) .

Footnotes 1 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 162 (1892) . 2 Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) . 3 60 U.S. at 417 . 4 Mackenzie v. Hare, 239 U.S. 299, 311 (1915) . 5 Chirac v. Chirac, 15 U.S. (2 Wheat.) 259, 269 (1817) ; United States v. Wong Kim Ark, 169 U.S. 649, 701 (1898) . 6 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. 7 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) . 8 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) . 9 1 Stat. 103 (1790). 10 Act of July 14, 1870, § 7, 16 Stat. 254, 256. 11 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. 12 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) . 13 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. 14 E.g., 77 Stat. 5 (1963) (making Sir Winston Churchill an “honorary citizen of the United States” ). 15 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 (1892) ; Contzen v. United States, 179 U.S. 191 (1900) . 16 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 164, 168–69 (1892) .

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