After his third-place finish in New Hampshire, GOP presidential contender Ted Cruz is trying to reinvent himself as a
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civil libertarian in a bid for Sen. Rand Paul's supporters. Paul's supporters should be very wary. If Cruz's extreme anti-gay and anti-immigration tirades don't give them pause already, the Expatriate Terrorist Act, Cruz's unconstitutional brainchild, which Sen. Paul refuses to support, certainly should.
The bill's alleged purpose, as per the Texas senator's explanation during the New Hampshire GOP presidential debate, is to stop Americans who've joined ISIS from returning home to "wage jihad against America." That adds up to all of 12 Americans give or take. In exchange, however, the bill would expose 300 million U.S. citizens—both naturalized and natural born, both at home and abroad—to the threat of losing their citizenship.
Cruz first introduced this monstrosity in the Senate in 2014, only to have it shot down. But since the San Bernardino attacks, he has renewed his efforts to push it through the Senate Judiciary Committee, on which he sits, and bring it for a floor vote. Meanwhile, Rep. Steve King (R-Iowa) has introduced a companion bill in the House. And given that Republicans now control both chambers, absent a filibuster, this awful legislation could well pass Congress and reach the president's desk.
Why is it so awful?
To understand that, consider some background on what the government currently can and can't do: As per the 14th Amendment to the U.S. Constitution, citizenship is a right, not a privilege. As Justice Byron White explained in the 1980 Vance vs. Terraza ruling, "Expatriation depends on the will of the citizen rather than on the will of Congress and its assessment of his conduct."
This means that the government cannot strip Americans of their citizenship without their consent—no matter how heinous their offense. "The government must establish that the individual knowingly, voluntarily, and intentionally relinquished his right," notes Georgetown University's David Cole, "just as courts must establish that an individual knowingly, voluntarily, and intentionally waived his trial rights before accepting a guilty plea."
But what the government can do is intercept ISIS agents when they try and re-enter the country, charge them with treason, sedition, or any number of other crimes, obtain a conviction, and put them away for a long time. The government can even potentially execute them. After a conviction—and only after that—Uncle Sam can launch a separate civil expatriation review to show that the offender intended to relinquish his or her citizenship, but with a lower evidentiary bar than the original conviction. Under current law, these offenses include such acts as bearing arms against the United States and incitement to rebellion.
Cruz's bill would change two things:
1. It would authorize the government to revoke citizenship rights without a court conviction.
2. It would also expand the list of expatriatable offenses to include "training" and "material assistance" to terrorist groups without defining either of those terms.
Cruz maintains that the bill would prevent Americans who have turned terrorist from re-entering the United States. This sounds good! But the more one thinks about it, the less sense it makes.
If the government has evidence that these folks are indeed terrorists, then why should it merely strip them of their citizenship and stop them from returning home (or leaving if they are already here)? Why shouldn't it also prosecute them? And if it doesn't have evidence, then why should they face any consequences at all?
The only way to understand Cruz's bill is that it aims to give government the power to take away the citizenship not of Americans against whom it actually has hard evidence—but against whom it doesn't. In other words, the point is to revoke the citizenship not of known but merely suspected terrorists.
This is very dangerous.
Consider how it could work: Say the Justice Department informs the State Department that it suspects some Americans of being involved in a listed terrorist group in a way that signals they intended to relinquish their citizenship. Basically, the State Department would use some procedure not specified in the bill to verify that suspicion. If it's satisfied, it would issue certificates to these Americans that their passport and citizenship had been revoked.
If they are out of the country when this happens, they would presumably be barred from returning home, something that would force them to live in another country as stateless residents, possibly illegally. If they tried to re-enter America, they would be detained. But if they are already home, they'd be stateless residents whom the government could likely detain at will. If they are expatriated when abroad, the only appeal that the law extends, notes Niskanen Center's David Bier, is to the very State Department that took away their citizenship in the first place, and only if there is substantial new evidence.
The scariest part of the bill is that without due process or a trial or the presumption of innocence, many innocent Americans would be condemned without having any opportunity to refute the evidence against them. The government can accuse them of whatever it wants on whatever grounds it likes without challenge. This is the kind of thing that passes for justice in the Islamic Republic of Iran.
But also troubling is that the government could use its citizenship-stripping powers to persecute political actions that go against standing government policy. If merely offering "material assistance" is the standard, then what is to stop the government from revoking the citizenship of black Muslim Americans who distribute pro-Hamas material? Or Irish Americans who hand out pro-Irish Republican Army pamphlets? Both outfits are or have been on the government's terrorist list.
It is very unlikely that Cruz's Alice-in-Wonderland exercise that turns standing judicial principles on their head would withstand constitutional scrutiny. But such concerns have prompted Sen. Paul to distance himself from this bill even though he himself previously called for revoking passports of Americans fighting with ISIS. "The Constitution already provides a means to deal with this by trying someone for treason," a Paul spokesperson told me via email. "And he would oppose anything that takes away Americans' rights without due process."
Cruz, a Harvard-trained lawyer, boasts that as a teenager he could recite the entire Constitution from memory. His campaign website says, "Ted Cruz has spent a lifetime fighting to defend the Constitution [which] was crafted by our founding fathers to act as chains to bind the mischief of government and to protect the liberties endowed to us by our Creator."
Clearly, Sen. Cruz's memory is failing him now—because the bill he's drafted unchains the government to do unimaginable mischief to the rights of ordinary Americans.
This column originally appeared in The Week.
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