Now that Ted Cruz has proposed that Americans who fight with ISIS be stripped of citizenship, there’s been a rash of articles questioning whether this would be legal, such as this one at Hot Air.

At American Thinker, Rick Moran has written:

Currently, natural born citizens of the US cannot have their citizenship revoked against their will. It is unclear whether Cruiz’s bill would supercede the denaturalization law. It is also against international law to strip an individual’s citizenship if they are not also a citizen of another country. In other words, the US cannot create a “stateless” person that no other country would accept.

The relevant law is this statute originally from the 1940s, as well as several subsequent SCOTUS cases. This is how that portion of the statute reads:

a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality— …

(3) entering, or serving in, the armed forces of a foreign state if

(A) such armed forces are engaged in hostilities against the United States, or…

(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.

(b) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.

Cruz’s bill appears to update the wording of the statute to include phrases such as “or a designated foreign terrorist organization” and “or intentionally targeting nationals of the United States for acts of terror.” In other words, it basically seems to be making sure the person doesn’t have to be fighting in the army of a conventional state for the statute to apply.

Back in 2010, when Senator Lieberman was talking about something similar to Cruz’s current proposal, pundits seemed pretty clear on its legality. For example, John McCormack of the Weekly Standard had this to say, after citing the controlling statute:

Here’s where it gets more complicated. You would still have the right to contest this in court. And if you did, the burden of proof would be on State — not on you — to persuade the court that your involvement with a terror organization is sufficient to justify taking away your citizen status.

Bottom line: Lieberman’s law can’t keep you out of court against your will if you want to contest efforts to strip your citizenship. And chances are that if you were already facing other charges — plotting or executing a terrorist act — you would be simultaneously tried for that in civilian court, too, even as State continued to try to revoke your citizen status.

The portion of the statute’s original wording that revoked citizenship for voting in a foreign election was declared unconstitutional in 1967 in Afroyim v. Rusk, but it’s not the least bit clear that this would apply to the part of the act that involves fighting for a group that is engaged in hostilities with the US government.

It seems that there is a strong argument that such provisions get around the requirement that an act of relinquishing citizenship should be voluntary by creating a rebuttable presumption that such enlistment (in a group such as ISIS) constitutes evidence of an intent to relinquish citizenship.

Cruz is a lawyer, and he addressed the issue of voluntariness (which was the issue in the 1967 case Afroyim v. Rusk, where voting in an Israeli election was judged not to automatically constitute such a voluntary renunciation) this way:

Americans who choose to go to Syria or Iraq to fight with vicious ISIS terrorists are party to a terrorist organization committing horrific acts of violence, including beheading innocent American journalists who they have captured,” Cruz said in a statement.

“There can be no clearer renunciation of their citizenship in the United States, and we need to do everything we can to preempt any attempt on their part to re-enter our country and carry out further attacks on American civilians.”

Afroyim, which appeared to state that Congress could not revoke citizenship without an individual’s consent, was added to in 1971 by Rogers v. Bellei, which limited it to natural born citizens. What’s more:

Although Afroyim appeared to rule out any involuntary revocation of a person’s citizenship, the government continued for the most part to pursue loss-of-citizenship cases when an American had acted in a way believed to imply an intent to give up citizenship—especially when an American had become a naturalized citizen of another country. In a 1980 case, however—Vance v. Terrazas—the Supreme Court ruled that intent to relinquish citizenship needed to be proved by itself, and not simply inferred from an individual’s having voluntarily performed an action designated by Congress as being incompatible with an intent to keep one’s citizenship.

In Vance, the issue of proving voluntariness was addressed as follows:

The Supreme Court overturned portions of an act of Congress which had listed various actions and had said that the performance of any of these actions could be taken as conclusive, irrebuttable proof of intent to give up U.S. citizenship. However, the Court ruled that a person’s intent to give up citizenship could be established through a standard of preponderance of evidence (i.e., more likely than not) — rejecting an argument that intent to relinquish citizenship could only be found on the basis of clear, convincing and unequivocal evidence.

So the idea that it is not within Congress’s right to revoke citizenship for acts that are so extreme they could arguably be seen as meeting that requirement seems incorrect. I would even go further and say that fighting for ISIS meets the more rigorous requirement of “convincing and unequivocal evidence,” although that’s unnecessary under Vance.

Cruz’s proposed addition to the previous statute appears to change nothing about the way it would operate in the courts, nor would it seem to eliminate the person’s right to challenge the assumption of voluntariness of the “act of expatriation” under (b) of the statute, as quoted above.

[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]