The US Supreme Court heard an interesting case on Wednesday, April 26 involving the conditions under which the US government can strip away the citizenship of a naturalized citizen. The details of the case Maslenjak v. United States (it involved a Bosnian Serb who was granted refugee status) are not as interesting as the question that the court wanted the parties to address, which was: “May a naturalized American citizen be stripped of her citizenship in a criminal proceeding based on an immaterial false statement?”
The key word in the court’s framing of the question under review was immaterial. Being a naturalized citizen myself, I was interested in this case. When applying for citizenship, one has to take an oath that one is telling the truth on all the responses in the naturalization application. The problem is that some of the questions are exceedingly broad. One of the them is “Have you ever committed, assisted in committing, or attempted to commit a crime or offense for which you were not arrested?” (The bolding is in the actual form.)
Much if the discussion during the oral argument was whether this was a ‘but for’ question, meaning that ‘but for’ this piece of information, the decision could have gone the other way. In other words, should this question cover only those matters that if disclosed would have precluded the person from getting citizenship?
Chief Justice John Roberts zeroed in on the part that said “offense for which you were not arrested”, pointing out that Black’s Law Dictionary defines ‘offense’ as a violation of the law, a crime, often a minor one. He then posed the hypothetical as to whether if he, having known that he had driven at 60 mph in a 55 mph zone and knowing that a strict reading of the law required full disclosure of even such a minor transgression, had deliberately failed to disclose that fact during the naturalization hearing, that would be grounds for having his citizenship revoked. In his response, Robert A. Parker, the Assistant to the US Solicitor General and the person appearing for the Trump administration, took an extraordinarily expansive view of what was covered by that oath. After first trying to wriggle out of answering it, he finally conceded that yes, the government could use that to strip citizenship even decades later. This led to other hypotheticals such as whether lying about one’s weight or not disclosing one’s nicknames could also lead to disqualification.
Under the government’s standard, anyone could be stripped of their citizenship. As justice Stephen Breyer said, it’s “rather surprising that the government of the United States thinks that Congress is interpreting this statute and wanted it interpreted in a way that would throw into doubt the citizenship of vast percentages of all naturalized citizens.”
Towards the end, Roberts made the point that I think raises the real problem with the government’s assertion, that it practically invites prosecutorial abuse. Recall that Roberts has been one who is deferential to executive power so his position is interesting.
“If you take the position that refusing to — not answering about the speeding ticket or the nickname is enough to subject that person to denaturalization, the government will have the opportunity to denaturalize anyone they want, because everybody is going to have a situation where they didn’t put in something like that — or at least most people. And then the government can decide, we are going to denaturalize you for other reasons than what might appear on your naturalization form, or we’re not. And that to me is — is troublesome to give that extraordinary power, which, essentially, is unlimited power, at least in most cases, to the government.”
And that is of course a key aspect of authoritarian states. The government creates such a tight and widespread network of laws that it makes everyone into violators of laws that they are likely not even aware of. Then it can pick and choose to harass and punish anyone they dislike using those laws, even (and especially) if they cannot be prosecuted for actual punishable offenses. So, for example, if one is a vociferous critic of the government, the government can prosecute you for something else, though that is not the reason that brought you to their attention. This is not only a Trump or Republican issue since this case likely was initiated during the Obama administration.
The point is that all authoritarian governments desire to keep people in fear of being prosecuted for something trivial so that they do not want to risk coming into the crosshairs of the government for any reason. That is how you intimidate, control, and wear them down.