SCHNEIDER v. RUSK

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Argument of Milton V. Freeman

Chief Justice Earl Warren: Number 368, Angelika L. Schneider, Appellant, v. Dean Rusk, individually and as Secretary of State.

Mr. Freeman.

Mr. Milton V. Freeman: May it please the Court.

This case is here on appeal from a statutory Three-Judge Court, sustaining the validity of section of 321, 352 A1 of the Immigration and Nationality Act.

That Court granted a judgment on the pleadings, dismissing the complaint.

The issue is the deprivation of the appellant's citizenship under the McCarran Act, the 1952 Act mentioned.

It's a new statute, involving 1952 reaffirmation of a statute passed in 1940.

It is the sole substantive discrimination against naturalized citizens in the entire history of the United States.

It removes the appellant's citizenship because she is living abroad with her husband who is not an American citizen.

This is an act for which citizenship is not removed from native-born citizens.

We assert here that the statute is invalid for discrimination under the Fifth Amendment and on various other grounds.

The statute Section 352 A1 and A2 companion section are part of a statutory scheme, which have a conclusive and automatic termination of citizenship.

They provide, in a statute which applies not to native-born citizens but only to naturalized citizens, that a naturalized citizen who resides for three years in the country of origin or for five years in any other country, automatically loses citizenship.

This provision as stated before does not apply to native-born citizens.

There are a number of exemptions to mitigate the harshness of this rule.

Those exemptions provide that in certain circumstances, which Congress has provided as a matter of grace, a naturalized citizen may attain the same right to live, to work anywhere else in the world that he or she would have had if born in the United States.

That is, it takes the second class citizen and says if he had behaved himself well he will get the same rights as the born citizens.

Thus if he has fought in the armies of the United States during war time he then receives, as a special reward from Congress, the privilege to be treated as though he were a native-born citizen and the privilege to live abroad, it happens in this case that he may live abroad only in a country in which he was not originally a citizen and no matter how distinguished his service or how many awards, he may not live in the country from which he came, but the statute nevertheless awards by a series of exemptions for special good conduct or special circumstances warranting the mercy of Congress, an exemption from the statute and persons who are naturalized citizens living aboard may not be expatriated if they come within the special exemptions who are generally residents abroad for three years in the country of origin or five years in any other country, automatically cuts off by this statute the connection of that person with the United States and he or she is deprived of citizenship.

Justice John M. Harlan: Except for the exemption that you referred to, there is no way of getting a dispensation from the statute?

Mr. Milton V. Freeman: There is no way of getting a dispensation; the only way that it has been done in case of hardship is of course by special legislative bill in the particular case.

Chief Justice Earl Warren: Mr. Freeman where do we find those exemptions?

Are they in the --

Mr. Milton V. Freeman: They are in the law and they are printed in extenso in the appendix to our brief.

They are in section 353 and 354 of the statute and they appear at pages 76 and following pages in our principle brief.

Now, the facts of this case are enlightening as to the scope of the statute.

Angelika Shaffer, as she was then called, was born in Germany in the year 1934 in a small village in Bavaria.

In the year 1939 she came with her mother, her father, her two brothers, a half brother and a half sister, the entire family, to the United States where she was admitted for permanent residence with her whole family in the year 1939 when she was not quite five years of age.

In the year 1950 when she was 16 years of age, she was duly naturalized, derivatively through the naturalization of her mother.

She received a certificate of naturalization shortly thereafter and there is no question that she is a truly naturalized citizen, naturalized in 1950.

Between the time she came to the United States in 1939 and the time she was naturalized she went to public schools in the neighborhood of New York City, the high school and at the time of her naturalization in December 1954, in 1950 she was a freshman at Smith College in Northampton, Massachusetts.

She duly was graduated from Smith College in the year 1954.

Then a New York Institution, the New York Institute of International education offered her a scholarship to study in Bern, Switzerland at the University of Bern.

At the time all her relatives were not only residents of the United States, but American Citizens, the people with whom she came, her mother and father since being dead.

Mr. Kernic, co-counsel here is her uncle and a member of the New York Bar on the occasion of her leaving to study in Switzerland gave a farewell party for her.

To this farewell party Mr. Kernic invited a young man he had just met, a young German student who was in the United States on a Fullbright research scholarship.

He was studying at New York University, he was working with the New York Trademark firm of Langner, Parry, Card and Langner and Mr. Kernic thought he would be a nice fellow to invite.

It turned out to be a good judgment.

Angelika Shaffer met in Nutley, New Jersey her future husband.

At that time he was, just arrived in the United States intended to stay for a year, she was studying in Switzerland, they made tentative arrangements that they might meet after their various foreign tours.

(Inaudible) she went to Bern for two semesters and incidentally her only connection with Germany since the time that she had come here with her family in 1939 as a child of five was to get to Bern, Switzerland she had to go through Germany.

She did not stop.

After her two semesters at Bern she went to study at the Sorbonne.

From Bern, Switzerland going to the Sorbonne she went through Germany again and on this occasion she met Dr. Schneider who had returned from his Fullbright year in the United States.

She then frequently came to visit Mr. Schneider, to be with Mr. Schneider in Paris and while she was student at Sorbonne they became engaged.

Finishing her studies then she came back to the United States, took employment and lived in Nutley, New Jersey with her uncle until a marriage date was set.

In June 1956, she left the United States to be married, on July 4th 1956 in Cologne, Germany, and she has had her residence in Germany with her husband ever since.

She has, she had before the events which gave rise to the litigation, two children, one born in 1957 and the other in 1958.

In the year 1959, the government of United States through it's consulate in Düsseldorf stated that Mrs. Schneider was expatriated because she had resided for three years in Germany, interrupted only by a brief visit when she had her first child, she came back to the United States to show up her first born to her family, but outside of that she had resided and still resides continuously in Cologne, Germany where her husband is practicing law and is a member of a leading law firm in Cologne.

Justice John M. Harlan: How long after the expiration of the three year period did she get this notification?

Mr. Milton V. Freeman: She got it before the expiration.

What they did was they gave her a passport for a short period of time and then immediately advised her that she was not to be allowed to have the passport extended.

They kept the passport.

They crossed out her photograph and returned it to her as valid for her two children then aged two and one, who may travel as American citizens being American citizens as the children of an American citizen at the time they were born.

Justice John M. Harlan: Could she have obviated this by coming back to the New York for day?

Mr. Milton V. Freeman: She could not have obviated because the definition of residence which is set forth in the statute means the place of usual and continuous residence and does not mean absolutely continuous and uninterrupted residence.

That particular possibility was foreseen by the Congress and foreclosed.

The definition of residence appears on page four of our brief.

It's Section 101 of the McCarran Act and it says “The term residence means the place of general abode.

The place of general abode of a person means his principal actual dwelling in fact without regard to intent.”

Residence shall be considered continuous for the purposes of Section 350 and 352, and we are talking about 352 here of this title where there is a continuity of stay but not necessarily an uninterrupted physical presence in a foreign state or states outside the United States.

Justice John M. Harlan: She would have had to come back here permanently and resume her American residence.

Mr. Milton V. Freeman: Yes, in order to avoid the operation that she would have had to leave her husband or persuade her husband to give up his law practice in Cologne and come some place in the United States.

Now --

Justice John M. Harlan: Her children although they may never set foot in the United States and they live in Germany all their lives will always be American citizens?

Mr. Milton V. Freeman: No, under special rules, because they have dual nationality, father is a German citizen, the children derive German citizenship through their father, American citizenship through their mother and unless they spend five years between the ages I believe of 14 and 28 in the United States.

Justice Potter Stewart: Then they lose it yeah.

Mr. Milton V. Freeman: They lose their citizenship.

Justice William J. Brennan: But if they do between those ages then for life they retain their citizenship?

Mr. Milton V. Freeman: I believe so Your Honor.

Now when the passport was returned to her with her name stricken out and only her children left in, she was required to surrender the certificate of nationalization which was given to her in the year 1951 evidencing her naturalization.

In 1950, she surrendered it under protest, a letter from Mr. Kernic to the effect of the protest is in the record.

Thereafter she was served with a certificate of the loss of nationality of the United States issued by the state department, originally issued by the consulate in Düsseldorf and affirmed by the state department in Washington.

She brought these proceedings but in the meanwhile she had serious problems.

So long as she was an American citizen with an American passport residing in Germany with her German husband she had no problems with the German government.

Once her passport was lifted, she was then a stateless person.

The German authorities in Cologne stated that as a stateless person she had no right to remain in Germany and was required by German law to be expelled as a stateless person without any right to remain in Germany.

There were various discussions, representations were made and finally after much difficulty and trouble she obtained a piece of paper which allows her to remain in Cologne with her husband, a temporary residence permit as a stateless person in Cologne.

This piece of paper maybe extended from time-to-time and it has been extended to this date and it maybe extended.

Chief Justice Earl Warren: What would have been the consequence Mr. Freeman if it was not extended?

Mr. Milton V. Freeman: I would assume that she would be expelled from Germany, and she would have no place to go because the government of the United States would not allow her to come here as a citizen.

She might apply to return to the United States under some immigration quota if one were available, and she would be I don't know what quotas we have for stateless persons.

Now she has travelled and she has been able to travel as a stateless person, of course as a stateless person before she leaves Germany she came here with her husband in 1960 after these proceedings were begun, she came as a stateless person, when you travel as a stateless person -- before she left Germany she had to be sure that when she came back Germany would readmit her, get a stamp on the piece of paper which would be permission to go out and to come back.

She had to get permissions, special permission from the United States government which is not otherwise necessary if you come from great many other countries to come to the United States.

She intends to come here again in June which is the 10th reunion of her college class.

She has two subsequent children, children born after the beginning of these proceedings and after the termination of her citizenship or the purported termination of her citizenship and these two children have a citizenship which is dependant upon the outcome of this case.

If this case is successful they are like their brothers dual nationals carrying American citizenship under the conditions we have mentioned and if we are unsuccessful they are only German nationals and they do not have the same rights as their brothers.

Justice William J. Brennan: Did you say Mr. Freeman whether she might obtain a German citizenship again?

Mr. Milton V. Freeman: Under the laws of Germany women who are married to German citizens may apply for and receive German citizenship by a process of naturalization similar to ours but on an expedited basis.

Justice William J. Brennan: Although she was German born.

Mr. Milton V. Freeman: She was German born but she lost her German citizenship.

Justice William J. Brennan: American national --

Mr. Milton V. Freeman: -- when she became an American national, there's some discussion in the government's brief that it tends to guess it out on that, but there is no question about it and the finding of the court below is that she is stateless.

Justice William J. Brennan: Well if she may (Inaudible) get again a German citizenship is what really have to take care of a citizenship, possible American citizenship of these two native born children?

Mr. Milton V. Freeman: No, in her own American citizenship.

Justice William J. Brennan: (Inaudible) I'm speaking practically.

Mr. Milton V. Freeman: Practically her own American citizenship is the vital importance.

The government says it doesn't make any difference to you, whether you have an American passport and it's perfectly alright if you are taking German --

Justice William J. Brennan: So she could come into the United States (Inaudible) could she not with children.

Mr. Milton V. Freeman: Only on special permission.

Justice Potter Stewart: And she has.

Mr. Milton V. Freeman: She has been able to do that and the question --

Justice Tom C. Clark: (Inaudible) permanent residence.

Mr. Milton V. Freeman: If properly admitted as an alien for a permanent residence.

Justice Tom C. Clark: Yes, the American children (Inaudible)

Mr. Milton V. Freeman: Well it might or might not Your Honor, she has two children who --

Justice William J. Brennan: Well, that's what I'm wondering but not really.

Mr. Milton V. Freeman: No the other --

Justice William J. Brennan: Other issues, other rights to stay here but perhaps two (Inaudible) children --

Mr. Milton V. Freeman: Well I think basically if I may say what I think Mr. Schneider has said in the record, I put that question to her and why do you want to be an American citizen if you are not going to live here and you are going to live with your husband in Germany and she says, “I wouldn't feel myself, I would feel silly with a German passport.”

Now she has restated that in the record in more elegant terms.

She says, “I feel myself an American, America is the only country that I have any devotion to, that I have any interest, I have no interest in Germany, I will live with my husband wherever he may be.”

Justice William J. Brennan: (Inaudible) she came here.

Mr. Milton V. Freeman: She came just -- when she was just under five, so she came here as a child of five and she has spent all her formative years in the United States, she went to American school, she is an American girl.

Justice Arthur J. Goldberg: I assume there are thousands (Inaudible) husband.

Mr. Milton V. Freeman: That's right, there are great many.

Justice Arthur J. Goldberg: Who are eligible for foreign citizenship (Inaudible)

Mr. Milton V. Freeman: Will never apply for it, they don't want it anymore than Mrs. Schneider does and Mrs. Schneider has of course every opportunity to get --

Justice William J. Brennan: Well of course they don't lose.

Mr. Milton V. Freeman: They don't lose their citizenship because --

Justice William J. Brennan: Only a naturalized American girl.

Mr. Milton V. Freeman: It's only the naturalized American girl who is faced with this choice of accepting some other citizenship that she doesn't want or remaining stateless.

Now Mrs. Schneider was faced with that choice.

She said one, I will not give up either my country or my husband, I will be stateless rather than except German citizenship, because German citizenship, I cannot consciously take an oath of allegiance to the German government, I have my allegiance exclusively to the government of the United States.

The fact that she is in Germany is an accident of the place where the man she married happens to live and to practice his profession, he is a German lawyer, he is a skilled German lawyer, he is able to practice his profession in that place, he cannot any place else and she should not be forced to abandon him for that reason.

Justice John M. Harlan: Where do they live in Germany?

Mr. Milton V. Freeman: Cologne, Germany.

He is a member of the Cologne firm whose name, the name is in the record.

Now there were two things that are not in issue in this case, which are absolutely clear.

The two things that are not in issue are the good faith of the nationalization originally in her actual loyalty to the United States.

The statute makes no distinction.

It takes away the citizenship of a person who was naturalized in good faith and accepted citizenship in the United States in good faith and it applies no matter how much after the naturalization and no matter how long after and under what different circumstances and it applies independently of the actual loyalty of the person to the United States.

It's perfectly clear that in the year 1950 when Angelika Schneider as a freshman at Smith college was naturalized that she had no idea or intention of marrying D.D. Schneider who was then a student from some German University, she met him only 10 years later.

So her naturalization was accepted wholeheartedly and without any condition and qualifications and it is not subject to attack.

If it were subject to attack it would be a different story, there are many grounds for attacking naturalization obtained with reservation and I shall come to those later, but it's perfectly clear her naturalization was accepted in good faith and if he intended to stay in the United States and complete her education and do whatever else a young girl would do.

Also, not in issue was her actual loyalty to the United States.

She has proclaimed it in her affidavits here which are un-contradicted.

She has also proven it by the fact that she has not accepted what has been suggested, it is an easy way, why don't you accept some other citizenship, German citizenship is easy to obtain, she has refused it.

Now, both the government and the majority opinion of the District Court below have some doubts about this judgment, for the majority below raises a question that there is nothing in the record to show that Mrs. Schneider has performed any of the duties of American citizenship.

Now there is no specification of what duties of American citizenship she was supposed to have performed.

There is no indication that there is any basis any charge.

The statute makes this irrelevant.

If the government were to charge that Mrs. Schneider had failed in any responsibility to the government of the United States it will of course be necessary for them to present specifications and to give her an opportunity to meet them.

We asset that the record is clear that she has met every obligation of an American citizen and that there is no obligationship of American citizenship which cannot be imposed upon her and which she cannot be compelled to perform merely because she happens to be residing outside the physical limits of the United States.

Allegiance to the United States is not something which requires physical presence on our soil, subjection to our laws, also that's not required, physical presence on our soil.

If there are any tax obligations, military obligations of any kind they may of course be imposed on American citizens residing abroad and as this Court knows from the facts in the Court case, we have a induction center in Frankfurt, Germany.

Now, what is the right which is attacked here?

What has the government done because Mrs. Schneider is living with her husband?

They have taken away her right to be a citizen.

I don't think we have to elaborate too much on that right.

This Court has talked about it in many terms.

The Trop case held that taking away that right was cruel and unusual punishment.

They have been described as the total destruction of the individual status in organized society.

It has pointed out as the questions he has that the plaintiffs very existence is at the sufferance of the country which she happens to find herself.

Well, any country may (Inaudible) rights, as has been indicated, no country needs to do so, because she is stateless and it has been characterized as a truly terrifying remedy, a drastic measure and the statement that is one of the most valuable rights and has grave practical consequences.

I say, every member of this Court has associated himself with some or all of those remarks.

Now that right cannot be treated we say the way a right of lesser consequence can be treated.

The Court below thought the cafeteria workers case against McElroy was relevant.

They said if you can classify between various people and say these people can come work in the cafeteria in the Navy yard, and these people cannot then it's alright to say that these people can be citizens and other people cannot.

We say that whatever the conclusions of the various members of the Court maybe on that case we say this is a different matter.

This is a much more important right.

It's much more basic and it is not subject to simple classifications to say that, well, naturalized citizens put them in one bin and classify them as though they were potatoes or well we were dealing with a right of a lesser consequence.

The classification here also as I shall point out later is of course on the basis of origin and ancestry.

It is as the Court said, classification in Hirabayashi which is odious to three people.

We say that whatever the circumstances in which such a classification maybe apply they do not apply here.

Now, we say that the power over citizenship, the right to take away citizenship requires some action which is related allegiance to this country.

We say you cannot take away citizenship unless the person in question, the citizen has indicated that he has abandoned his allegiance to the United States.

Unknown Speaker: (Inaudible)

Mr. Milton V. Freeman: No Your Honor, I think we accept Perez, we accept Savorgnan we accept Perez.

We say that it does not depend on the subjective intent exclusively.

We accept Savorgnan.

We say that, well Mrs. Savorgnan said, I hereby apply to be a subject of the King of Italy that the government of the United States could say we don't care about what your subjective intent was.

The objective effect of your act was a reputation of American Citizenship and acceptance of a foreign citizenship.

They could say that Mrs. MacKenzie whether that is still a law or not, when you under the state of the Law at that time become a British subject the United States is a jealous mistress, we will not share your loyalty by becoming a British subject, you have lost your American citizenship.

In Perez, the majority pointed out that it was necessary to find something less than complete and unswerving allegiance to the United States and elements of an allegiance in some measure at least inconsistent with the American citizenship.

The Trop case emphasized that there was no dilution of allegiance in that case and if Your Honor please the dissenters in the Mendoza case indicated that at least so far and we hope it will remain that way and we believe the Constitution so requires it, and I quote, “Our previous decisions involve conduct inconstant with undiluted allegiance to this country.”

And when the four dissenters and that's part of the provision on which all the four dissenting justices in Mendoza agreed, it's not part of the separate one about the presumption, that when those four dissenting justices said that, they enunciated true doctrine, that when you are dealing with citizenship you have to talk about allegiance.

That citizenship is a relationship between the government and the citizen and the government has a right to expect allegiance of the citizen and the citizen provided, he gives allegiance, is entitled to membership in the society.

Unknown Speaker: (Inaudible)

Mr. Milton V. Freeman: As I read the case the difference between the members of this Court in Perez as to whether this act of voting could or could not reasonably be regarded as giving up American citizenship and involving the person with the Government of Mexico.

In other words, it's the same problem as we regard Perez as merely an extension of subordinate as a case in which this Court said the majority of us believes that the act of voting is just like the act of applying to become a citizen of another country, that Congress could reasonably say that it had the same effect and that it does affect allegiance.

Whereas in this case there is no political involvement, no basis for a congressional judgment that Mrs. Schneider for the vast -- number of citizens who are living aboard are involved with foreign powers and have given up their allegiance to the country of which they are citizens.

Chief Justice Earl Warren: You recognize the rule in Perez as been the rule why this case should be decided, or you only distinguish it on the facts of this case, is that correct?

Mr. Milton V. Freeman: Well I'm not sure that in the light of Mr. Justice Harlan's question whether the Court reads Perez the way I do, I read --

Chief Justice Earl Warren: (Inaudible) do you agree with the rule in Perez?

Do you think that's the rule that this case should be decided by or rely on the distinction between the facts of this case and the facts of that case?

Mr. Milton V. Freeman: Well I may say this Your Honor.

We have argued this case on the assumption that Perez was the law.

If Perez were not the law and the views of the some of the justices in that case were to be accepted of course this would be a very, very easy case.

We say that even under Perez this is an --

Chief Justice Earl Warren: (Inaudible) your cased decided under the Perez rule?

Mr. Milton V. Freeman: Pardon me.

Chief Justice Earl Warren: You are agreeable to having this case decided under the Perez rule?

Mr. Milton V. Freeman: Well no Your Honor, I don't believe I can do that.

I'm agreeable to having case decided in favor of my client in anyway that this Court will agree to it.[Laughter]

Justice William J. Brennan: Mr. Freeman, in any event I gather to the extent that you say you accept Perez, you accept Perez as you've just told us you read it.

Mr. Milton V. Freeman: That's right Your Honor.

Justice William J. Brennan: That's dangerous.[Laughter]

Mr. Milton V. Freeman: Well Your Honor makes better position of a judge than I am.

Justice William J. Brennan: I couldn't possibly read it that way that's (Inaudible) –-

Mr. Milton V. Freeman: Well –-

Justice William J. Brennan: Turning on the distinction of ascribing the particular conduct thereby is something which will in effect were annunciated in allegiance --

Mr. Milton V. Freeman: No I'm not saying that.

I'm saying that Perez at most says that you can ascribe to this punishment or this consequence of loss of citizenship only through conduct which is inconsistent with American citizenship, which dilutes allegiance and I say that, that is language which has appeared in the opinion of every justices of this Court and since there seems to be a question about it, I would like to read again if I may, the language of Perez.

Perez says it's a consequence that the act involved here involves something less than complete and unswerving allegiance to United States and elements of an allegiance to another country in some measure at least inconsistent with American citizenship, that's Mr. Justice Frankford's opinion in Perez.

Justice John M. Harlan: (Inaudible)

Mr. Milton V. Freeman: Yes, Your Honor.

Justice John M. Harlan: (Inaudible)

Mr. Milton V. Freeman: It means there was irrational exercise of that power to take away citizenship, because it was only rational to take away citizenship if the citizen had done something inconsistent with allegiance with the United States and consistent with allegiance.

Justice William J. Brennan: Well if that's right –- that's right – (Inaudible)

Mr. Milton V. Freeman: Well I hope you will -- pardon me.

I hope Your Honor will arrive at that conclusion and I say citing from the dissenters in Mendoza the language that our previous decisions involved conduct inconsistent with undiluted allegiance to this country, so that I'm saying that even the dissenters in Mendoza construed Perez the way I'm suggesting it should be construed.

Justice John M. Harlan: There is another question I hope you are going to argue (Inaudible)

Mr. Milton V. Freeman: I intend to Your Honor, right now.

The basis upon which --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Milton V. Freeman: That's absolutely right Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Milton V. Freeman: That's right Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Milton V. Freeman: That's right Your Honor.

Now one argument that is made here and the basic argument of the government that they have been driven to another one that the government has general power over its citizenry as an inherent matter, I think that doesn't deserve much intension, we dispose of it in our briefs and it's inconsistent with what this Court has said in the other denaturalization cases.

But the argument here is made that that this is necessary for the conduct of foreign affairs and that this is an exercise of the foreign affairs power.

Now if you look in the legislative history of this act, you will find no basis for it, in the Perez case, unlike this, there was an actual problem which was presented to Congress.

Congressman Dickstein was very much exercised over the fact that a great many American citizens had gone to Germany or to Tsar Land and voted in the (Inaudible), Americans of German origin had voted in the (Inaudible) to return to Tsar Land from France to Germany.

And that particular foreign affairs problem was the occasion for the foreign voting provision in the Perez case.

In the present case there is no problem of foreign affairs.

The government has gone back to try except in the sense in which I shall talk and be regarded as foreign affairs, the government has gone back to the middle of the last century to try to try to show that there are problems, that there were problems relating to the impressments of American citizens by foreign countries.

The fact of the matter of course was as their own brief shows that all of these problems had been resolved by the middle of the 19th Century by the so-called bank Bancroft Treaties.

The government of the United States had fought hard to obtain for its naturalized citizens the right to live abroad including the countries from which they originally came.

They --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Milton V. Freeman: Well that is another example of the point that I'm about to make that this statute deals not with military impressments because military impressment is something that arises immediately the former citizens come back, comes back to his country, they don't wait two or three or four years and Congress was not dealing with that problem.

That problem was generally regulated whatever problems there might be with tourists.

This is not a statute that deals with a problem of the tourists.

This is the statute that deals with a problem if any of the long time residents in the foreign country.

Now what happened was that having obtained for our citizens, naturalized as well as born citizens, the right to reside abroad without molestation by foreign governments, we faced another problem.

It is in fact that some citizens like Mrs. Schneider retain their American loyalty and that some citizens when they go either to the land from which they came or to another land or born citizens decide that they like it better where they are and give up American citizenship in fact and Congress and the state department were very much concerned with that problem.

And that was the problem that arose after the turn of the century and it was before the state department and Congress in 1906 and 1907.

And their problem was what shall we do about that?

We do not believe that it's appropriate for the government of the United States to extend protection to people who are only, as they stated, nominal citizens and people who are really Turks or Greeks or whatever else and are not really Americans.

So they adopted one statute, they adopted a statute in 1906.

Now from the beginning of our republic it has been the law that you have to remain in the United States five years before you are naturalized.

So that anybody who is naturalized in the United States in the normal case has invested five years in his life in living in the United States.

In 1906, to avoid a possibility that somebody might come here for five years and then go away, a statute was adopted which provided that anybody who left the United States within five years of naturalization would have to explain why there was a rebuttable presumption that if you left the United States within five years of your naturalization that you had intended at the time you were naturalized not to stay in the United States and that the promises you made at that time were false and that your naturalization would be revoked and this was an attack on false naturalization.

This court in the Luria case sustained that presumption and said that's fine of course as you get close to the five years, you have to have more conclusive proof but this is an individual matter and as a presumption it will stand.

So that now, in 1906 when that statue was passed it was clear that a naturalized citizen at least was pretty well taken care of, he had five years that he had to invest before he became a citizen and five years afterwards where his naturalization was subject to question, but that wasn't only question.

The question is what happens if you have somebody who has been a citizen for a long time, born or naturalized, who may even naturalize here and lives here 30 or 40 years and goes away.

What do you do in that case?

Now the state department thought this was a problem which applied to both born citizens and naturalized citizens.

In connection with the statute which was the five year presumption statute, a study was requested by the state department and the state department suggested a rebuttable presumption applicable to both born and naturalized citizens that long time residents aboard should be the subject of a presumption of intention to give a citizenship and should be subject to rebuttal.

In the course of consideration of this proposal by the state department in 1907, the Congress -- the statute came out applicable only to naturalized citizens.

And it provided that a naturalized citizen who lives two years in the country of his origin or five years in another country, should be presumed to have lost his citizenship and that this was rebuttable.

This statute was construed, one as not taking away citizenship but only as governing diplomatic protection although the language seems talking in terms of citizenship, the attorney general in the court said, “Of course Congress was considering only which citizen should be entitled to diplomatic protection and not actual citizenship.”

In addition to which as this court said in the Gay case, it was a presumption easily rebuttable.

In substance it was a census provision.

We've said we have a great many citizens living abroad born and naturalized, in this case naturalized, we want them to announce themselves every so often as to whether they intend to remain citizens and if they announce themselves -- in the Gay case all the gentleman had to do was to appear at the Swiss consulate say here I am and I want to remain an American citizen and that was it.

Now nothing happened from 1906 until 1941.

The state department came before the Congress and said, we are having a lot of trouble with these cases.

We present you 13 typical cases.

We don't know how to decide whether a fellow is or is not entitled to diplomatic protection.

It involves great difficulties and we wish you the Congress would relieve of these responsibilities and adopt an absolute rule, an absolute rule that if somebody is a resident, three years in the country of origin or five years in another country and he is a naturalized citizen, he loses his citizenship absolutely and then we don't have to bother about them anymore.

They said we know that of course we can make determinations in individual cases, but they said, if we make determinations in individual cases, the court proceedings that will be burdensome, cumbersome, time consuming and expensive.

And we want you the Congress of the United States to relieve us of the burden and expense of individual determination.

And the Congress obliged.

We say that the Congress had no right to do that, that the constitution prohibits dealing with a basic right like citizenship.

On a basis which is an absolute presumption, the presumption in fact here are disloyalty, of lack of allegiance, just because it would be as the official indicated burdensome and expensive for them to find out whether in individual cases this was just or unjust --

Justice William J. Brennan: Is that the same experiment that -- what this record demonstrates is that the only reason for this provision was administrative convenience.

Mr. Milton V. Freeman: That's right.

Justice William J. Brennan: You have to say it's not a sufficient -- it doesn't set up a rationale connection with anything, is that it?

Mr. Milton V. Freeman: That's right, Your Honor, that's what we say and that's what Judge Fahy in his dissent indicated.

It's very clear and the actual cases before the Congress has reasons why they should pass this statute do not have anything to do with any problems with the foreign government, they created no problems with foreign affairs.

The only problems they created was that the government officials would have to sit on decide these questions and they didn't want to decide whether -- now what happened -- another thing that this statute did in 1940 and now in the 1952 act it not only made presumption, the rebuttable presumption of the 1970 statue conclusive, it also applied not just a diplomatic protection but the citizenship so that if as some of the 13 cases were, a citizen who is subject to the statute and excluded by wanted to come back to the United States he could not, under the 1907 statute at any time you could come back.

But this statute made a conclusive presumption and said you could never come back except as any foreigner.

Now we say that you can't do that to naturalized citizens.

We say that when the Court has permitted such a group determination of disloyalty it was only under extreme war time conditions, in the Japanese exclusion case, and I would like to read the circumstances under which that was justified in the Korematsu case, the majority Court, that was another Japanese exclusion case, and it said there was evidence of disloyalty on the part of some.

The military authorities considered that the need for action was great and time was short.

Now there is no such situation here.

Time is not short.

There is adequate opportunity for the government of the United States to make individual determinations.

There is no imminent threat of invasion.

Military authorities are not involved, and we say that the government of the United States must give individual justice, that it cannot give discriminatory justice, that it cannot attribute to naturalize citizens' loyalty or disloyalty to the United States which it does not attribute to born citizens in similar cases.

I'd like to reserve the rest of my time.

Chief Justice Earl Warren: Mr. Terris.

Argument of Bruce J. Terris

Mr. Bruce J. Terris: Mr. Chief Justice may it please the Court.

I would like to dispose at the outset of the appellant's contention which counsel did not reach in oral argument and which is contained in our brief, that this case is governed by the Court's decision last term in Kennedy versus Mendoza-Martinez.

That is that this statute is a penal statute and therefore it violates the Fifth and Sixth Amendments and the Eighth Amendment.

The short answer to this is -- this statute is not a penal statute.

There is not the slightest indication of a legislative history, not even a -- not a word or a sentence to indicate that it is a criminal statute or that it was intended to deter or to have retribution or to have any of the other attributes of a criminal statute and aside from the legislative history, we believe that it is unbelievable to think that Congress would have imposed criminal penalties on a neutral act such as mere residence abroad which is not criminal and is not immoral and is not reprehensible in any way.

I would now like to turn to what are admittedly the serious constitutional questions which are involved in this case.

As we see it there are two.

First, whether Congress has the power to expatriate American citizens because of prolonged residence in the country of their origin on the basis of Congress' power over foreign affairs.

And the second question is whether it is a denial of equal protection of the laws insofar as this principle applies to the federal government through the due process clause of the Fifth Amendment, to provide that expatriation of naturalized citizens without providing for the expatriation of native born citizens.

Before I consider the legal arguments on these two questions I would like to turn to the history underlined Section 352 (a) (1).

To be frank I do not recognize the history as it is described by the appellant's counsel.

This history extends back to English common law and I think it's also relevant as this Court has indicated in the previous case to look to the experience of other countries.

Therefore we'll just summarize the materials which are described in considerable greater -- considerably greater detail in our brief and which even the brief is only a summary of the really overwhelming evidence that foreign problems, foreign affairs problems underlay this statute.

In English common law, a citizen had no right to renounce his citizenship at all.

This was the so called principle or perpetual allegiance, but this principle was not reciprocal.

Not only were conditions often placed in grants of citizenship, but England had statutes which provided for expatriation for various conduct, including for prolonged residence abroad.

Now these principles were partially refracted in the American Constitution.

As in England, the political rights of naturalized citizens are limited in the American Constitution.

No naturalized citizen may ever be President of the United States and he may not sit in the House of Representatives or in the Senate for seven and nine years respectively after naturalization.

While Madison and Hamilton opposed these provisions at the constitutional convention, they did so on the ground that the provisions were unnecessary.

They said, in Madison's words, Congress has the right of regulating naturalization and can by virtue thereof fix different periods of residence as conditions of enjoying different privileges of citizenship.

In the first Congress, in debate on whether residence should be required prior to naturalization, Congressman White said that if this requirement were omitted naturalized citizens should be expatriated who left the country and stayed abroad for a given length of time.

When another congressman challenged the constitutionality of this proposal, Madison responded it maybe a question of some nicety, how far we can make our law to admit an alien to the right of citizenship step-by-step, but there is no doubt we may and ought to require residence as an essential, and despite appellant's contentions to the contrary in a reply brief, I think a reading by this Court of that entire 10 or 15-page discussion in the first Congress will show that Madison was discussing residence after naturalization.

In the conflict between the Hamiltonians and Jeffersonians in the 1790s over the right of citizens to renounce their citizenship, the Jeffersonians argued that immigration and resulting residence abroad dissolved the ties binding a citizen to his government and when this issue again became crucial during the war of 1812, the Madison administration published a pamphlet saying that immigration with intent to reside abroad permanently ipso facto constituted expatriation.

During the 19th Century a new problem arose in this area.

Naturalized citizens residing in their native lands became sources of conflict in American foreign relations, when foreign countries treated them as their own citizens with regard to military service, to taxation, to political loyalty and the like.

As a result despite the traditional American doctrine of extending protection to natural born and naturalized citizens alike, the Department of State as early as 1818 tried to meet this problem by refusing to give protection to naturalized citizens domiciled in their former homelands.

After the civil war the problem became even more acute, as pressure began to conscript American citizens into it's armies and England charged American citizens with complicity in the Fenian Revolt after they had returned to their native Ireland.

Consequently the American government tried three new methods to meet this problem.

First, Congress in 1868 passed a statute which provided that naturalized citizens and native born citizens would be given protection and the like in the hopes that foreign countries could be induced not to make demands on any American citizens.

Also in 1868 the Department of State began to enter into the so called Bancroft Treaties, which provided that if a -- that a naturalize citizen was expatriated, if he returned to his former homeland without an intent to return to his adopted country and that an intent not to return would be presumed after two years residence.

Today these Bancroft Treaties are enforced with 21 different nations, not including Germany, although one -- the first treaty was with Germany since at the time the treaty expired.

And the third method of dealing with this problem was that late in the 19th Century the Department of State started to inform naturalized citizens residing in their native lands with which no Bancroft Treaty existed that they had expatriated themselves.

When President Grant pulled his cabinet as to whether naturalized citizens resided in their native countries with no intent to return to this country had expatriated themselves, a majority of the cabinet answered in the affirmative including Secretary of State Fish, and this principle was also followed by several international mixed claims commissions.

As this Court described the situation in Perez, the historical situation at the end of the 19th Century, no one seems to have questioned the necessity of having the Department of State pass on the validity of claims to American citizenship, but this method was regarded as unsatisfactory since no clear standard existed and expatriation depended on executive discretion.

Consequently demands grew for Congress to act.

As early as 1863, President Lincoln suggested to Congress that it fix a limit beyond which no citizen of the United States residing abroad may claim the interposition of the government.

In 1874, President Grant told Congress that a statute defining expatriation was necessary because the representatives of the United States in foreign countries are continually called upon to lend their aid in the protection of the United States to persons concerning whose citizenship there is at least a great question.

However, Congress did not act promptly.

It was not until the start of the 20th century the Congress first passed legislation in this field.

They first passed in 1906, the statute which Mr. Freedman has alluded to providing for -- providing a presumption of loss, fraudulent naturalization for leaving the country within five years of naturalization, but that same year Congress suggested that a thorough study be made to the entire field of citizenship.

As a result, Secretary of State Root appointed three high state department officials to study the question.

This Citizenship Board as it was called founded the class of Americans who live within the jurisdiction of foreign countries is becoming larger each year and the question of their protection causes increasing embarrassment to this government in its relations with foreign powers.

The Board said the denial of diplomatic protection was not sufficient since they left too much to the uncertainty or fluctuations of executive policy.

As a result of the Board's recommendation, Congress passed the Nationality Act 1907 which provided that if a naturalized citizen resided in the foreign state of his origin for two years or any other foreign state for five years that he be presumed to have lost his American citizenship.

In explaining this provision, the House Committee which reported the bill said, perhaps the most important provision of the bill was desired by the state department, a guard against complications in which this country has become involved.

Many foreigners come here become naturalized and then return to their own countries or migrate to other parts of the world without any intention of returning to this country.

Such a provision as this would be a great assistance to the Department of State, would avoid possibilities of international complications and will prevent those who are not entitled to its protection from dishonestly hiding under the American flag.

However, the 1907 statute did not worth well in practice.

The 1933, President Roosevelt appointed a committee composed of the Secretary of State, the Secretary of Labor, and the Attorney General to review all the nationality laws.

After five years of intensive study by experts they concluded that the 1907 statute was unsatisfactory for two reasons because it had been interpreted to cause loss of protection and not loss of citizenship and to provide only a presumption and not a definite rule.

The committee went on to state that the problem presented by naturalized citizens of the United States residing in the foreign countries in which they were born or of which they were formerly nationals of whom there are thousands at the present day has been a cause of difficulty and embarrassment to the government of United States in the effort to stand protection to other naturalized citizens in meritorious cases.

A definite provision for the termination of American nationality will have the affect of persuading foreign states to recognize the American nationality of the persons concerned when they return to their countries of origin for legitimate objects and for residence of a temporary character.

There are several other statements of the similar kind which I will not go on to quote.

They are contained in the government brief.

On the basis of the committee's report, Congress provided in the Nationality Act of 1940 that the expatriation of the naturalized citizens after two years residence in the country of their origin if they whereby reacquire their former nationality, three years residence in the country of their origin if they did not reacquired their former nationality and after five years residence in any other country.

The same provisions were contained -- were retained by the Congress in the 1952 Act except that the two year provision was omitted and the definition of the residence was tightened to make sure that evasion could not occur by brief trips to the United States.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: Your Honor that's, I think that's a much more difficult question.

It's a question that is not involved in this case.

I think, to be frank I don't think that there is a great deal more likelihood of embarrassment than for a native born citizen in that situation.

I think what is different from a native born citizen is that Congress thought that likelihood of alien nation of allegiance is greater for a naturalized citizen than a native born citizen even when he is in a third country.

However, I do want to emphasize that is not this case.

That provision was upheld by the Court of Appeals in the District of Columbia in the (Inaudible) case, a certiorari was denied by the Supreme Court a number of years ago.

The 1952 provisions were subjected to extensive criticism in Congress in the congressional hearings including of the five year provision in Section 352 a (2).

However, we have found no criticism of Section 352 a (1) which is I have indicated is the only provision which is involved here.

I think the experience of other countries including of the other great democracies is also instructed.

Justice William J. Brennan: Before you get that Mr. Terris, history this bill referred to selling out that the presumption didn't work because they didn't even arrest or whatever it was, embarrassment, indicate what the embarrassment were the facts that suffered under the presumption.

Mr. Bruce J. Terris: Well, the kind of the kind of embarrassments Your Honor the actual situations which were discussed by the presidentially appointed committee that reported in 1938 they gave 13 illustrations.

Now as appellant's counsel indicates as to 12 of them.

The embarrassments are indicated.

As to the 13th Embarrassment was that the property of this person was confiscated and the United States apparently was in the position of trying to intervene on his behalf.

However, there is a long history of embarrassments particularly over military service and in addition over the attempts of American citizens to leave various countries because there was a very major controversy with Poland after World War II in which American citizens were not allowed to leave Poland and some of them were incarcerated apparently because of doubts as to their political loyalty.

Justice William J. Brennan: Poland made no distinction between the American naturalized and the American native born.

Mr. Bruce J. Terris: I think, I am not certain of that Your Honor I think they did, I think these were formally Polish citizens and that's why they exercised, they claimed to have jurisdiction over them.

A very few foreign countries attempt to exercise dominion or jurisdiction over native born American citizens in the absence of an affirmative act such as a crime of some sort --

Justice William J. Brennan: Well, I gather this agreement leading to the (Inaudible) was that it's only administrative convenience --

Mr. Bruce J. Terris: Well, Your Honor I --

Justice William J. Brennan: (Inaudible) obviously is not at the time but were actual embarrassment --

Mr. Bruce J. Terris: That's right Your Honor.

Justice William J. Brennan: Under the presumption, it was approved to some workability and therefore trying to (Inaudible)

Mr. Bruce J. Terris: Well, let me address myself directly to the question of administrative convenience.

Administrative convenience entered into it, what the department of state found was that it could end the Embarrassments without having a statute which it could minister.

Now, to that extent the administrative convenience entered in.

Justice William J. Brennan: Well, would the government be defending the statute constitutionally if there were absolutely nothing except that it was easier to do it with the definite rule and with a presumption.

Mr. Bruce J. Terris: No, Your Honor that's certainly not this case.

As I've indicated, we think there is 100 years of history of very definite embarrassments.

Now, the number of embarrassments in the 19th Century, Moore's book International Law Digest has I think it approximately 70 pages of one situation after another involving variations on these problem different factual situations.

So I don't think there is any question that Embarrassments are potentially possible and that they do arise.

Justice Byron R. White: With any of the --

Mr. Bruce J. Terris: The potentiality with any American citizen but history has shown that is most likely with naturalized Americans citizens.

As I have indicated very few countries attempt to assert jurisdiction over native born Americans citizens.

They don't feel that they can claim anything as to them, they may expel them.

Justice Byron R. White: Then again I suppose that if they are native born Americans -- rather naturalized American citizens but native born from some other country, from the country in which they are in, does the government treat them any differently?

Is it only, in other words, is it only it's only native form who are now naturalized Americans?

Mr. Bruce J. Terris: Yes, yes its --

Justice Byron R. White: (Inaudible)

Mr. Bruce J. Terris: That's the basis for my response to Mr. Justice Goldberg that the foreign affairs difficulties are markedly less in regards to Section 3 52 a (2).

All the -- Mr. Justice White, all the history which I have set forth has involved naturalized citizens.

All the statements by the Department of State, all the underlying embarrassments have all involved naturalized citizens.

Justice Byron R. White: (Inaudible) maybe foreign citizens, I mean ones you said that indicate they were not similar --

Mr. Bruce J. Terris: They are -- not nearly to the same extent, not nearly to the same extent but there is, certainly have been embarrassments by native born citizens.

Justice Tom C. Clark: (Inaudible)

Mr. Bruce J. Terris: Well Congress has the full power to decide who can become a citizen.

Now there certainly cannot I -- the government is not contending that it can impose any restriction on --

Justice Tom C. Clark: I was wondering whether they could make any condition in that position that any person who became naturalized (Inaudible) remain in United States?

Mr. Bruce J. Terris: I think they could Your Honor.

Justice Tom C. Clark: If they have not stayed United States well for years.

Mr. Bruce J. Terris: Your Honor I --

Justice Tom C. Clark: (Inaudible)

Mr. Bruce J. Terris: Your Honor I think you can -- I think that is exactly what Madison said that that Congress did have that power.

Justice Tom C. Clark: (Inaudible)

Mr. Bruce J. Terris: No it would not.

Justice Tom C. Clark: (Inaudible)

Mr. Bruce J. Terris: It would let Mrs. Schneider on under the wire because this provision is identical to that under the 1940 statute and in fact we do suggest that in our brief that she became a citizen with this condition attached.

Justice Byron R. White: Mr. Terris what's -- what would be wrong with -- would the embarrassment be solved, or the government probably solved if this section read that a foreign born citizen, foreign born person who became naturalized did not go back to his hometown and lived there more than three years without consent of the Secretary of the State?

Mr. Bruce J. Terris: I think that, I think that would beat the problem.

I don't -- I am not at all sure why that would be preferable as a matter of constitutional law though.

I think that would raise the same difficulties as this case and in addition it might raise the difficulty which Mr. Justice Black suggested in his opinion in the Trop case about executive discretion.

So I think probably we just have one additional constitutional argument if that were the --

Justice Byron R. White: It was a better statute (Inaudible) service to military case?

Mr. Bruce J. Terris: Well that -- I think there is some possibility of that.

Justice William J. Brennan: What about the old (Inaudible) that consul withheld -- there used to be statutes which if you remained abroad for a period but within that time you went for a consul and said I retain my American citizenship that -- you retain it, what was, what was wrong with that approach rather than this?

Mr. Bruce J. Terris: Well Your Honor that would not, that kind of a statute in no way solves the problem which I have, which I have been discussing.

It indicates, it does solve one problem or at least it tends to solve it, it indicates the person is not giving up all allegiance to the United States by coming -- by telling the consul that he still wishes to be an American citizen, but the possibility of embarrassment with foreign countries remains the same.

They don't care whether this person claims to be an American citizen, they know that.

They claim that the person is still their citizen or has reacquired their citizenship and this is the problem in the 19th Century which is so clear, of two different states asserting jurisdiction over the same person.

And so --

Chief Justice Earl Warren: Perhaps I will ask in regard to Mr. Justice White question, doesn't this act give the Secretary of State most unlimited discretion to determine who can go to -- to the country of his birth and --

Mr. Bruce J. Terris: He doesn't have any discretion Your Honor.

Chief Justice Earl Warren: I beg your pardon.

Mr. Bruce J. Terris: He doesn't any discretion.

Chief Justice Earl Warren: I thought that this Section 352 A which says that this is not applicable as to certain persons, it says that not applicable to any person who is veteran of the Spanish American War, World War I or World War II.

I am reading from 79 of the brief for the appellant.

Mr. Bruce J. Terris: Yes.

Chief Justice Earl Warren: Any veteran of Spanish American War, World War I and World War II, or the Korean hostilities having served in army on an active duty status so forth it's a very long, long section and then, then it says or who has established to the satisfaction of the Secretary of State as evidenced by possession of a valid unexpired United States passport or other valid document, that he is temporarily outside of the United States for the purpose of (a) carrying on a commercial enterprise which in the opinion of the Secretary of the State will directly and substantially benefit American trade or commerce, or (b) any scientific research and so forth or (c) engaging in such work or activities under such unique and unusual circumstances as maybe determined by the Secretary of State to be directly and substantially beneficial to the interest of the United States.

Now I can imagine --

Mr. Bruce J. Terris: Well Your Honor one, there is a short answer to this.

One of the, one of the quickest answer I think that except for one exception this provision doesn't apply to the statute with which we are dealing, it involves -- it has application of 352 A (2) again the statute that I was discussing with Mr. Justice Goldberg.

Chief Justice Earl Warren: And what is that one?

Mr. Bruce J. Terris: That's the five year provision which does not apply to the appellant.

Chief Justice Earl Warren: It's in this same area that we are talking about, it does put them, does give a very (Inaudible) instruction.

Mr. Bruce J. Terris: Your Honor the Secretary of State may have -- I would debate that he does not have unlimited discretion under that, but I without trying to discuss that problem, the short answer is that that this provision in no way covers the appellant.

It cannot first of all of course she did not serve any armed forces obviously and second of all, it simple --

Chief Justice Earl Warren: No, but isn't it discriminatory if you do let veterans live abroad that way or if you do let anybody whom the Secretary of State thinks is furthering the interest of the United States or that he thinks he is engaging in an appropriate business or professional activity abroad.

Mr. Bruce J. Terris: Which -- Your Honor I must insist that that is not this case, there is nothing from statute.

Chief Justice Earl Warren: There is nothing to do with it?

Mr. Bruce J. Terris: No, it has nothing to do with it.

There was a provision in this statute saying that not only each provision is separable, but every application is separable.

The only thing that's been --

Chief Justice Earl Warren: (Inaudible) probably we wait for Mr. Freeman to answer, then he would give us --

Mr. Bruce J. Terris: Well I just -- would like to make this particular your point what is before the Court is not even the entire confines of this provision, what is before the court is its application to this appellant under Section 406 of the act.

Now turning to the experience of other countries which some members of the Court indicated was of importance in the Marcus' case, 30 countries provide for the expatriation of citizens based on residents abroad are from two to ten years.

In 25 of these countries, including the United Kingdom and seven commonwealth countries, these provisions do not apply to native born citizens.

And I think this is a general recognition in the world that the problem is markedly different between native born citizens and naturalized citizens.

The government submits that the history which I've just described very briefly (Inaudible) how much there is, but this history is conclusive.

This Court has repeatedly relied on history and especially in the views of the framers of the Constitution such as Madison to determine whether governmental action violates personal rights protected by the Constitution.

For example, in recent terms such history was relied on the prior cases.

Here the history from the earliest days of this republic shows a prolonged residence abroad has been considered as justifying expatriation and that a distinction has been consistently made between naturalized and native born citizens.

Madison himself plainly stated that naturalized citizens maybe required to maintain residence in the United States.

The power of Congress to expatriate under the section we believe is also supported by the Perez case not on the problem of the distinction between naturalized and native born citizens, but the basic power to expatriate because of residence abroad.

In Perez, this Court sustained a statute providing for expatriation because of voting in a formal election on the ground that it might embroil the United States and foreign difficulties.

We submit that the history of this section is far more clear, far stronger, has far more evidence than that involved in Perez.

Just since World War II, problems have arisen with Poland, Belgium, Greece, France, Iran, Israel, Switzerland and Turkey and we submit that there is no basis for saying that this is just an administrative problem.

This is a genuine current problem in international relations.

Chief Justice Earl Warren: Mr. Terris, are there any exceptions or exemptions to this act?

Mr. Bruce J. Terris: Yes.

Chief Justice Earl Warren: Where?

Mr. Bruce J. Terris: Section 353 Your Honor.

Chief Justice Earl Warren: Where do I find them?

Mr. Bruce J. Terris: They are in the -- I think page two or three of the government's brief and there are so in the appendix to appellant's brief on pages 76, 78.

Chief Justice Earl Warren: Well that's what I was reading, what I read to you.

Mr. Bruce J. Terris: No you were reading from section 354 Your Honor.

Chief Justice Earl Warren: I'm reading on page 78.

Mr. Bruce J. Terris: That's right and that's section 354.

Chief Justice Earl Warren: Yeah, all the rest of them are --

Mr. Bruce J. Terris: The ones on pages 76 to the top of 78.

Chief Justice Earl Warren: To the top of 78, yes.

Mr. Bruce J. Terris: Apply to section which we're dealing with.

Chief Justice Earl Warren: Don't waste anymore of your time I'll read it.

Mr. Bruce J. Terris: In Perez this Court also noted that voting in foreign elections suggested a transfer of allegiance from the United States to a foreign country.

Now the Court has said that this was not without significance.

It did not say that this was crucial to the decision as the appellant contends, but even if it were crucial to the decision in Perez, even if we assume that, surely prolonged residence in one's former homeland signifies far more clearly a transfer of allegiance, than the brief single act of voting.

Therefore, the factor of residence has been considered crucial in determining citizenship by the international court, by text writers on international law as well as by the many foreign countries which I have noted.

I think the relevance of a prolonged stay in one's homeland to transfer of allegiance, to dilution of allegiance is well expressed by the cabinet committee appointed by President Roosevelt.

Needless to say naturalized citizens who resume residence in the foreign lands from which they came are apt to renew old associations and ways of living and thinking and thus become merged in the native population, losing to a great degree, if not completely their American character and feeling.

This makes it all the more desirable that American nationality and not merely the right to diplomatic protection of this government shall be terminated.

Now turning to the appellant's principle contention, I think the most serious contention in this case, the distinction between naturalized and native born citizens, the appellant relies on statements in Osborn versus The National Bank and other cases by this Court, all which I think are dictum but which I think were seriously considered, where this Court has said that naturalized and native born citizens stand on the same footing.

The government has two answers to appellant's contention.

First, the Constitution itself shows that naturalized citizens have more limited political rights than native born citizens and in addition the statement by Madison upon which I rely before shows that residence was considered so interrelated with naturalization, that it could be made a requirement of citizenship.

Therefore, while we believe that the statement in Osborn is generally true, that the Constitution and history demonstrate that it has certain narrow exceptions vitally related to the question of naturalization itself.

Now the second reason that we think that appellant errs is that even though all American citizens must be treated equally, Congress of course can make reasonable distinctions between various classes of citizens.

For example, rich citizens and poor citizens stand on the same footing, bankers and workers stand on the same footing, but this does not prevent Congress from making rational distinctions between them.

Therefore, we submit that the crucial question in this case is whether the distinction between naturalized and native born citizens was a rational one.

I may say at this point that this is not a question of -- as in the Japanese cases of putting a label on particular people, of saying that some people are better than others, there is no contention, that Mr. Schneider or anybody else was disloyal or treasonable or the like.

This is a regulation of foreign affairs.

What we do say is that Mrs. Schneider and other people similarly situated cause serious problems in American foreign relations.

Now I have stressed before that it's long been recognized that there is a distinction between native born and naturalized citizens, both in relation to conflict with foreign governments and in relation to the possibility of the transfer of their allegiance to foreign governments.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: The distinction between naturalized and native born?

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: With the exception of the foreign statute and the 1907 statute.

No there has never been a statute, but their unbroken executive policy in the 19th century made this distinction.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: That's right.

No --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: No the first statute is in 1907, we think that executive -- the history starting with the exercise of executive discretion is equally relevant, since this was discretion exercised by the agency which conducts American foreign relations.

Therefore we submit that Section 352 (a) (1) deals with the most acute problems of foreign relations and transfers of allegiance, we believe there can be very little doubt that Congress has the power of legislating where the problem is most serious without legislating where a lesser danger is presented.

In fact, I cannot see how anything very basic would be protected by extending this statute to native born citizens.

Justice William J. Brennan: Well I would say Congress has already done that and (Inaudible)

Mr. Bruce J. Terris: It is done what Your Honor?

Justice William J. Brennan: Made a distinction that between naturalized -- if you go back to the place of your birth as I understand it's three years isn't it?

Mr. Bruce J. Terris: That's right.

Justice William J. Brennan: If you don't come back within three years you lose it.

Mr. Bruce J. Terris: That's right.

Justice William J. Brennan: If you don't come back to the place of your birth go to some other nation you have in five years.

Mr. Bruce J. Terris: That's right.

Justice William J. Brennan: So there is a distinction that Congress has already drawn.

Mr. Bruce J. Terris: And that Congress has made other distinctions too.

Justice William J. Brennan: And what is the reason for that, is that if an American naturalized citizens goes to some other nation outside of his birth he is not as much of a problem or nor perhaps any problem.

Mr. Bruce J. Terris: That's right Your Honor, I think probably the major reason for the five-year provision is the question of retransfer of allegiance and it was thought by Congress that the likelihood of retransfer of allegiance is less in a third country than it is in your native country.

Justice William J. Brennan: I see, it become citizen of a third nation, is that it?

Mr. Bruce J. Terris: It's not a matter --

Justice William J. Brennan: (Inaudible) in Germany of naturalized American, he now goes to Switzerland.

Mr. Bruce J. Terris: Your Honor, I don't think it's a matter any of this being solicited to some other countries, I think it's the question of being solicited to this country.

Justice William J. Brennan: Well I'm trying to find out what the problem is for this country, if the naturalized American citizen born in Germany goes to live in Switzerland or the Philippines or somewhere else.

Mr. Bruce J. Terris: Your Honors I suggested to Mr. Justice Goldberg, I think it's -- a government would have a very difficult burden of trying to show foreign relations embarrassments from that provision which is not involved in this case --

Justice William J. Brennan: The five year provision?

Mr. Bruce J. Terris: The five year provision, but I again emphasize that 352 (a) (1) --

Justice William J. Brennan: I suppose you'd say a fortiori you couldn't find it as to native born American foreign relations.

Mr. Bruce J. Terris: That's right Your Honor, precisely.

I may say --

Justice William J. Brennan: That's the ground on which you say this clarification is reasonable.

Mr. Bruce J. Terris: That's right.

I may say something further about the five year provision.

It was adopted not at the behest, originally it was not adopted at the behest of the cabinet committee, the 1933 Cabinet Committee.

Congress went beyond the recommendations of the Cabinet Committee and passed the five-year provision.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: These are native born Americans, you are talking about now?

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: If needed --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: That's right Your Honor, that they can -- that the -- first Congress has the power to take away citizenship from native born or American citizens -- or naturalized citizens, if there was a showing of strong likelihood of embarrassment in American foreign affairs.

Now as I've indicated Mr. Justice Brennan, I'm not sure we can make that showing as to native born citizens.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: Your Honor's question suggest some, a problem that face Congress, if we had, if Congress had passed a statute providing that all citizens lost their citizenship upon three years residence abroad then it would have been subject to attack, whenever a native born citizen was expatriated on the ground that we could not make a sufficient showing of embarrassment and embroiling the United States in foreign conflict.

Congress didn't do that.

It said, well we will deal with the heart of the problem.

So it dealt with naturalized citizens.

Now, we are faced with the contention that Congress should have passed the statute across the board because it cannot make a distinction between native born and naturalized citizens.

It seems to me that, what that argument means is, the Congress cannot deal with the problem and the problem essentially involves naturalized citizens.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: All I could, Your Honor all I can say about that is that a 100 years of history show that that doesn't work.

The Department of State, numerous Secretaries of State, numerous experts studying the problem have said, have found and that people like I think they were harsh in their attitudes towards American citizenship have found that this doesn't work and I think it doesn't work for one extremely important reason and that is just as it was stated in Perez, the way to deal with the problem is to say that these aren't our citizens anymore.

As long as we are, they are citizens we've got a problem, we cannot just completely wash our hands of them, what if they want to return to the United States, certainly every citizen has that right.

Revocation of diplomatic protection certainly couldn't extend to our saying to a still, a person who is still a citizen that we won't try to get you back to the United States, this was the problem in Poland.

It's the problem in Iran, and Israel at the present time.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: I think mainly Your Honor they say that you can't travel to those countries and that maybe one of the reasons if they say it is they don't want to be involved in problems once the person is there even having warned may not be enough to prevent the conflict.

Chief Justice Earl Warren: And Mr. Terris on the question of how much effect we should give to the concern of Congress over the effect of living in another country might have on people who were born in that country.

I remember that in the election case we had I think it was the Parish case here to go, we discovered that in this country aliens were permitted even to vote for President of the United States for all that 100 years, if you say there that might concern not only up to 1907 but for 20 years after that they voted, voted for President of the United States here without regard to what their loyalties were, they were here and they were permitted to vote.

Now those seems don't seems very consistent, doesn't it, if that is the -- if that is the main purpose of this statute.

Mr. Bruce J. Terris: Your Honor I am sorry I don't entirely follow.

Chief Justice Earl Warren: If they don't -- if they don't want the foreign influence as to, to be brought to bear on our people and our government and it has been concerning them for 100 years it seems a little strange to me that we would permit foreigners to come over here and vote for President of the United States.

Mr. Bruce J. Terris: Your Honor the concern is not about foreign influences, the concern is about demands that are placed in our citizens by foreign governments.

This may mean locking them up, it may mean throwing them to the army.

Chief Justice Earl Warren: Right I understood you to say that living over there could cause them to accept the home ways, the old home ways again and affect their loyalty in an adverse way and that that was the thing that it caused them for a 100 years to be concerned about naturalized citizen living abroad.

Mr. Bruce J. Terris: Your Honor I may say that I think you are dealing -- you are discussing State legislation not Federal Legislation and the states apparently those states no longer exist today, those states apparently regarded aliens who lived a while in this country is having been influenced by American ways.

Now I --

Chief Justice Earl Warren: But the point is, as I'm concerned over and some jurisdiction it seems to me over election for President of the United States.

Mr. Bruce J. Terris: Yes Your Honor I think actually this is maybe support more broad position.

Chief Justice Earl Warren: All right, I agree that.

Mr. Bruce J. Terris: The reason, I suggest that is apparently the states' believe that an alien who lived in this country for a while took on enough American ways so he could be trusted to vote in American elections.

We think that an American citizen who lives long enough in a foreign country also assumes enough of the ways of that country so they should no longer be considered an American citizen.

I like to point out that Section 352 a (1), if discrimination against naturalized citizens is a very, very limited one in its terms, in terms it applies only to the country of origin of the naturalized citizen.

Now, there is no country of origin of native born citizens.

Now, passing that question of discrimination in its terms looking to its effect, Section 352 a (1) says that a naturalized citizen cannot live more than three years in one country in the world, the country from which he originally came.

And it makes broad exceptions from this in Section 353, where Congress felt that the particular problems which I've discussed did not exist and we submit that this is a far smaller discrimination than this Court upheld in Mackenzie and Hare.

There this Court upheld a statute which suspended citizenship, took it away for a period of time which might be life because an American women married a foreigner while not taking away citizenship from American men who married foreign women.

I'd like also to point out that Section 352 a (1) has much less effect, the expatriation of people covered by 352 a (1) is far less severe than it would be on native born citizens.

This provision applies only the persons who returned to their former homelands and reside their for over three years.

They are likely to be either dual nationals or as in this case able to reacquire citizenship extremely easily.

I mean to say that there is a substantial question whether is not a dual national.

The main reason Germany describes her as stateless because she wants to be labeled as stateless and in our view under German Law she did not, probably did not lose her citizenship because either she nor her mother ever applied to the government or to a Court in Germany at the time that she acquired American citizenship, but even passing that, that isn't crucial to the case, passing that she can easily reacquire German citizenship, she is not in the situation of a person who is going to be stateless in the real sense.

She wants American citizenship.

It's a valuable right, I wouldn't deny it, but she is not in a situation of having no right as a citizen of any country.

Unknown Speaker: (Inaudible)

Mr. Bruce J. Terris: Yes Your Honor.

I know about how many become expatriated a year under this Section, the 1940 Act and the Bancroft Treaties which also take away citizenship on substantially the same basis and probably would be effected by an adverse decision to the government in this case.

It's approximately a 1000 citizens a year, under 352 a (1), about 900 to 1100 or 1200 a year.

Justice William J. Brennan: It's been that on the average since 1940 or --?

Mr. Bruce J. Terris: My figures don't go back quite to 1940 but that's --

Justice William J. Brennan: How long it been running about, 70 years?

Mr. Bruce J. Terris: I think the statistics for a decade show that it's about 1000 a year.

Justice Tom C. Clark: (Inaudible)

Mr. Bruce J. Terris: Yes, Your Honor.

Now, I would like to emphasize that this Court in Bolling and Sharpe implied that the due process clause of the Fifth Amendment does not contain all the content which the equal protection clause of the Fourteenth Amendment applies to the states, but even if it did it bars only unreasonable classifications and I think history establishes beyond any doubt that this classification has been considered reasonable and is still reasonable.

I now like to turn to the particular facts of this case because as I have indicated I think that what is involved here when reduced to its core is whether Congress had the power to provide for the appellant's expatriation in the view of section 406.

Appellant has made clear that she has no that she has the intention of remaining in Germany indefinitely.

Her husband has a law practice there, he apparently is going to stay, she naturally is going to stay with him and that she has no intent of ever residing in the United States except that she expects that she will make visits here as she has made in the past.

Therefore, her case falls within the Bancroft Treaties.

It falls within the situations which were governed by the discretion of the Secretary of State at the end of the 19th Century.

In other words, her situation falls within the narrow core of cases which raise most acutely the foreign affairs problems and the problems of transfer of allegiance.

Looking at the other side of the coin, looking at the effect of expatriation on her, assuming that that is relevant, appellant -- all that appellant looses here other than that she wants to have the good feeling that she is an American citizen, she wants American diplomatic protection, she wants to travel to United States without a visa, and at if some unforeseen adversity occurs she wants to be able to come here at will.

Justice William J. Brennan: (Inaudible)

Mr. Bruce J. Terris: Bancroft was the Minister to the North German Confederation.

Justice William J. Brennan: Where?

Mr. Bruce J. Terris: From the United States.

Justice William J. Brennan: How many nations were party to the --

Mr. Bruce J. Terris: There are now 21 nations, it is – varied some -- but there are still 21 now nations --

Justice William J. Brennan: Why that he has a distinction of giving these names here?

Mr. Bruce J. Terris: Because the first treaty was with the North German Confederation and I suppose he must have had something to do with it.

Justice William J. Brennan: How far back?

Mr. Bruce J. Terris: 1868.

Justice William J. Brennan: 1868?

Mr. Bruce J. Terris: 1868.

Justice William J. Brennan: Now wonder (Inaudible) [Laughter]

Mr. Bruce J. Terris: Therefore in the government's view what the appellant wants is that she wants the benefits of citizenship while remaining to practical purposes a foreigner and we don't think that Congress was constitutionally required to let her retain her citizenship in these circumstances considering the likelihood of foreign policy embarrassments.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: Well we could impose, we could impose burdens on them Your Honor and we do.

The point that I am making is not that she is, obviously she hasn't failed to serve in the armed forced and I assume that she has paid whatever taxes she is supposed to pay whether there are any or not on the, on any income, but that --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bruce J. Terris: I didn't suggest Your Honor that she has failed in any of her obligations to American -- to her American nationality.

All I have -- I don't consider her disloyal, I don't think the Congress considered her disloyal.

What I do say is that she left the country, she has put herself in a position where she can cause severe foreign policy problems that in these circumstances the possibility of the amount of time from her expatriation in relatively little and on the other hand the problems that she creates are the most severe of people in her general category.

I'd finally like to turn --

Chief Justice Earl Warren: Would she would be restored for citizenship by the Congress –

Mr. Bruce J. Terris: Yes Your Honor.

Chief Justice Earl Warren: -- by a special bill?

Mr. Bruce J. Terris: I see no reason why she could not be Your Honor.

I think Congress has –

Chief Justice Earl Warren: Make this by special bill.

Mr. Bruce J. Terris: Yeah, I don't – I see – I maybe wrong but I see no reason why that could not be accomplished.

I may say that despite appealing facts –-

Chief Justice Earl Warren: And is it within the power, the Congress to say we will declare all persons who live abroad for a certain time to be expatriated except those who might choose in our wisdom no standards of any kind to restore to citizenship, if that's what we want?

Mr. Bruce J. Terris: Your Honor, your suggestion would cut very, very deeply into all kinds areas.

It would make deportation statute all of them I suppose unconstitutional.

Chief Justice Earl Warren: This -- it goes pretty deep too, when you take a man's citizenship even --

Mr. Bruce J. Terris: Well, but I think the point of what I was trying to say was that, Congress I think has been recognized probably since the beginning as having the right as a matter of grace, it can confer benefits on isolated individuals.

Now I quite agree a serious problem would be raised if they then went out and did this carte blanche all kinds of people and then Mrs. Schneider wasn't included among them; that might raise an equal protection problem insofar as it applies to Congress.

That isn't the situation, occasionally --

Chief Justice Earl Warren: If you have a friend in Congress you can get a special bill this time through and nobody cares very much about it and they don't fight these kind of –

Mr. Bruce J. Terris: Your Honor if that –

Chief Justice Earl Warren: -- but a person with no friends or no money can't do that.

Mr. Bruce J. Terris: Your Honor, if there is something wrong with that, it is in the person who gets the private bill, that person has been, has gotten a benefit which is unfairly conferred upon him.

It does not -- certainly one benefit cannot mean that everybody else who doesn't get that benefit thereby has a right to be put in the same place.

I think that if there was, if – a contrary doctrine to what I've stated were applied to the law, it would be devastating in its effect.

It would mean one person who wasn't prosecuted for particular crime that means nobody else could be prosecuted.

They've gotten the benefits in the prosecutor and I don't think that that, that that proposition can stand in view of the way the equal protection clause has been interpreted.

Chief Justice Earl Warren: I thought you said that Congress didn't do this as a prosecutor if there was no penal –

Mr. Bruce J. Terris: Your Honor I only –

Chief Justice Earl Warren: -- behind this.

Mr. Bruce J. Terris: I brought up, perhaps shouldn't -- I brought up the prosecutor only that many, many times, in many, many different areas, government agencies exercise discretion to give benefits to particular people.

Now maybe they do that unfairly but that certainly can't mean that every other person has the right to be treated in the way that the most favorably treated person can, has been treated.

I think that such a proposition would undermine not just – the law, criminal law but deportation law, and all kinds of other situations, administrative law, all kinds of situations.

Now the -- in the last couple of minutes that I have I would like to turn to the appellant's argument that Section 352, after saying that 352 was too narrow because it doesn't apply to native born citizens, defendant also argues that its too broad because Congress could have met this problem by passing a more limited statute.

However, we think the short answer to this is Mcculloch and Maryland.

This Court held in its repeated determination numerous times that it's up to the Congress and not up to the courts to determine which among the rationale alternatives should be adopted.

And this principle was specifically applied to area of expatriation in Perez against Brownell.

Indeed the government thinks that it is particularly applicable in the field of foreign relations, since this Court recognized less than two weeks ago in the Sabatino case that foreign relations are peculiarly committed to the discretions of the political branches of the government.

Now, the history as I've indicated before of Section 352 –

Chief Justice Earl Warren: Basically is it foreign relations to take American citizenship (Inaudible)

Mr. Bruce J. Terris: Yes Your Honor, when the purpose of Congress is to deal with the serious question in American foreign relations, I think it is.

The means may have to do with something in the United States but the purpose and the field being regulated is foreign relations.

I think that -- I think the Perez and Brownell stands for this proposition, I think MacKenzie and Hare does in terms.

As I've indicated diplomatic protections has been tried, has been found wanting.

Ad Hoc executive discretion has been tried, it has been found wanting.

Therefore Congress finally after years and years of experience by the Department of State turned to the method which is now in the 1952 Act, we think that this was a perfect rationale decision, first because a clear rule is necessary to dissuade other countries from interfering with American citizens.

As a result, American citizens are better protected and foreign conflict is reduced.

In addition we think it's -- from the point of view of the individual citizen it's important that he have a clear standard of what acts will expatriate him.

If ad hoc executive discretion were used, as the appellant contends, I think the appellant would have a far better constitutional argument than she actually has because she would say then that she couldn't tell what would expatriate her, this way she was on notice, as the appellant's counsel says she knew before she expatriated herself what would be the effect of her continued residence in Germany, she deliberately stayed in Germany and took the consequences.

And then there is the --

Chief Justice Earl Warren: You mean that when she was married she deliberately made that choice?

Mr. Bruce J. Terris: Your Honor, it's of course a perfectly natural thing that she would stay with her husband, but it still was a voluntary choice, that's right.

Chief Justice Earl Warren: How do you know what her purpose was when she was married as to whether they -- whether she or either of them would live – continue to live in Germany?

Mr. Bruce J. Terris: Your Honor, all I can take is the record, she says she is going to -- she makes quite clear she is going to stay in Germany.

Chief Justice Earl Warren: Because she is going to stay with her husband, that's the only reason, isn't it?

Mr. Bruce J. Terris: That's quite right Your Honor, but the point is that she is going to continue to reside abroad and that is the point that -- that is the very thing that embroils United States in foreign difficulties.

Chief Justice Earl Warren: Mr. Freeman, would you mind at the outset telling me what relevance this Section 353 that you quote in your brief has to this case?

Rebuttal of Milton V. Freeman

Mr. Milton V. Freeman: Yes Your Honor, it establishes the discrimination between born and naturalized citizens, by showing that there are a series of exemptions which are in the nature of rewards for naturalized citizens and if they come within them by good conduct of some kind such as serving in our armed forces or pursing some activity of which the Secretary of State approves in his discretion, then they will obtain from the Government of the United States the right to be just as good as a naturalized citizen and if they don't do that then they are not just as good as a naturalized citizen and they don't get the right to stay either in the country of their origin or in any foreign country.

Justice William J. Brennan: Naturalized and native born.

Mr. Milton V. Freeman: Native born citizens, that they get the rights and these are in the nature of rewards for naturalized citizens which if you meet these exemptions you are then equated with a born citizen in your rights to reside abroad.

Chief Justice Earl Warren: Well what I want to know is this, does this Section of 354 have any direct bearing on this case, that portion of the sub division one which says engaging in such work or activities under such unique or unusual circumstances as maybe determined by the Secretary of State to be directly and substantially beneficial to the interest of the United States.

Mr. Milton V. Freeman: That provision as Mr. Terris said, applies to people who reside not in the country of their origin and it says they -- if the Secretary of State says I approve of what you are doing then you may reside more than five years in Libya or wherever else if you didn't come from Libya and it says you then have the right, let's say if you are a petroleum engineer, you have the same right to live in Libya for ten years and to make a contract that a born American citizen has without the permission of the Secretary of State, there are no discretionary provisions as to the right to live in the country where you originally came.

Chief Justice Earl Warren: Three years?

Mr. Milton V. Freeman: But as to those there are exemptions which say that if you are working for the Government of the United States and we won't take your citizenship away and so on, if you reside in that country or if you are working for an American firm but you may not take an offer from a foreign firm if you are living there.

So that is now -- in that connection I would like to put the relationship of these two statues, Mr. Terris has of course tried to limit the issue to only the statute that is applicable to Mrs. Schneider.

These statutes have been together from the beginning.

The fact that they had been together is we are dealing with people who are residing not only in the country of their origin, but in other countries, shows that Congress was not concerned with the nature of foreign affairs problem, but I think I quote Mr. Terris correctly if I say that solicitors of this country, they are concerned with the problem of retransfer of allegiance.

In other words, this is a kind of rough attempt by the Congress to find out if American citizens are loyal by lumping them in groups.

They lump naturalized citizens why they are loyal you don't have to check on them and born citizens you don't have to check on them, they are loyal of course.

A naturalized citizen is suspect.

If he lives abroad for five years in another country then the one he came from, why then he is suspect, if he goes back to the country where the came from originally no matter how much later, why he is suspect in a shorter period of time, this is a question of allegiance.

Now I think Congress has the right to deal with people who have compromised their allegiance in some way by some act, but they don't have the right to do it on the basis of grouping all of these people as naturalized citizens and saying everybody in that category is in the same --

Justice Tom C. Clark: (Inaudible)

Mr. Milton V. Freeman: No I do not unless it's conditioned on something relating to loyalty that can be applied to born and naturalized citizen alike.

I think that's the teaching of the rulings of this Court that say that when a naturalized citizen becomes a citizen he is taken up in the body politics with all the rights of the born citizens and I think --

Unknown Speaker: (Inaudible)

Mr. Milton V. Freeman: That's the only distinction which is permissible, the one that the constitution makes.

Justice Tom C. Clark: I thought the constitution says makes that Congress has tried to make the rule --

Mr. Milton V. Freeman: Well, what our brief shows, our reply brief show that, that means that you can make conditions only before he becomes a citizen and not after --

Justice Tom C. Clark: I meant before.

Mr. Milton V. Freeman: But the condition should not apply to his conduct after he becomes a citizen, that is once he is naturalized in good faith, assuming there is good faith naturalization of course, then he is the same as a born citizen, that's what the Constitution means, that's what the history of the debates that we have discussed in our brief and in our brief we think it establishes clearly that the Chief Justice Marshall was correct and the other decisions of this Court were also correct.

Justice Tom C. Clark: (Inaudible)

Mr. Milton V. Freeman: No indeed I don't think you can have two classes of citizenship, we argued that, the government had raised --

Justice Tom C. Clark: In fact I just thought (Inaudible)

Mr. Milton V. Freeman: Yes sir.

That is extensively brief Your Honor and we believe that there is no right to condition citizenship and require one class of citizens is something that you do not require of another class of citizens.

That's I think the most basic point we make.

Now there are a few little things I would like to pick up as I've noted.

Now Mr. Terris stated with respect to -- and he pays great attention to the 1906 citizenship board and he says the 1907 statute was a result of the board's recommendation.

Now what he omits to state was the board in that case recommended that as far as people living abroad were concerned that you had to deal with born and naturalized citizens on the same basis.

I think there's an interesting and more detailed history, more detailed than in any brief that is filed in the Cornell Law Quarterly we have cited in our reply brief but I like specifically to note it, 49 Cornell Law Quarterly Page 52, it's a 1963 decision.

Now as far as the Bankcroft treaties which were mentioned, I think one thing that's consequential, we've mentioned that in our reply brief on page ten, the Bancroft don't deal with taking away citizenship at all.

They deal with diplomatic protection.

It's so stated, there is a decision of the Immigration Naturalization Board, the State Department itself urges it before the International Court of Justice that it had nothing to do with taking away citizenship that people could always come back, it's like the 1907 Statute, it's a question of diplomatic protection.

Justice Byron R. White: Are those (Inaudible)

Mr. Milton V. Freeman: They cited in our brief on page 10 of our reply where yes they discussed the main reason on page 10 of our reply brief is the evidence to the effect --

Justice Byron R. White: (Inaudible)

Mr. Milton V. Freeman: Well, we say in footnote seven on page ten that the State Department took the position as recently as 1958 that's what they meant in a proceeding before an Italian United States conciliation commission.

Justice Byron R. White: (Inaudible)

Mr. Milton V. Freeman: Well, I don't know Your Honor, I haven't checked that recently.

Justice Byron R. White: Well do you know what they say?

Mr. Milton V. Freeman: Not at he moment, Your Honor.

Now as far as the subject of the relevancy of the aliens voting in the United States is being sufficiently involved in our citizenship to be able to vote, the rules that we are applicable which were mentioned in the Perez case said that United States citizens who -- I mean aliens who are residing in the united States, who had filed an intention to become citizens of the United States could vote.

Now Mr. Schneider has not filed any intention to become a citizen of Germany and has no evidence as they were.

In other words we accepted these foreign persons as entitled to be involved in our political life and to vote before 1928 because they had committed themselves to become United States citizens and so declared their intention.

Now as far as Mrs. Schneider status of course she is stateless the government moved the judgment on the pleadings on a complaint was said she was stateless, the Court of Law said she was stateless, I have the greatest respect Mr. Terris' expertise in German Law, but no point was made of that below and it's just wrong, our experts on German Law say something different, the case is here on a clear pleading, Mrs. Schneider is stateless she has been treated as stateless by the German government.

I recited to Your Honors the difficulty she has had in even obtaining a piece of paper --

Justice Byron R. White: (Inaudible)

Mr. Milton V. Freeman: No I don't believe so, but it would be -- it's an attempt as there are a great many attempts to indicate that maybe there is something wrong with Mrs. Schneider's individual loyalty, although there -- it's accompanied with repeated statements that nothing reprehensible involved and there is nothing involved which indicates here disloyalty, but we arguing about retransferring of allegiance and we say that can be done only by individuals non-discriminatory determinations.

Thank you.