Constitutionality of Legislation to Confer Citizenship Upon Albert Einstein ( 1934 )

Constitutionality of Legislation to Confer
Citizenship Upon Albert Einstein
Congress has the authority to enact a law granting citizenship to Albert Einstein.
April 9, 1934
MEMORANDUM FOR THE ASSISTANT SOLICITOR GENERAL
The Constitution, Article I, Section 8, Clause 4 provides that:
The Congress shall have Power . . . to establish an uniform Rule of
Naturalization . . . .
In the early days of the government the courts seemed inclined to the view that
the power to admit to citizenship remained in the states, except as Congress might
provide uniform rules on the subject, which would supersede any state rules or
laws. However, the courts soon adopted the view, which has since prevailed
unquestioned, that the exclusive power to admit to citizenship vests in the
Congress. See Frederick Van Dyne, Treatise on the Law of Naturalization of the
United States 6–9 (1907) (“Treatise on Naturalization”) (discussion of cases);
U.S.C.A. Const., pt. I, at 378–79 (1928) (digest of cases); United States v.
MacIntosh, 283 U.S. 605, 615 (1931) (“Naturalization is a privilege, to be given,
qualified or withheld as Congress may determine”).
The requirement of uniformity does not appear to have been judicially consid-
ered except as indicated in the following excerpt from Darling v. Berry:
In my opinion, when a bankrupt, revenue, or naturalization law is
made by its terms applicable alike to all the states of the Union,
without distinction or discrimination, it cannot be successfully ques-
tioned on the ground that it is not uniform, in the sense of the consti-
tution, merely because its operation or working may be wholly dif-
ferent in one state from another.
13 F. 659, 667 (C.C.D. Iowa 1882) (emphasis added).
Ruling Case Law states that:
The requirement of uniformity is construed to mean that the mode or
manner of naturalization prescribed by Congress should have uni-
form operation in all the states.
1 R.C.L. § 62, at 848 (William M. McKinney & Burdett A. Rich eds., 1914).
Congress has long exercised the power of conferring citizenship by the follow-
ing methods:
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(l) General statutes empowering the courts upon the finding of pre-
scribed facts to grant certificates to persons within classes specified.
(2) General statutory provisions conferring citizenship upon aliens
who marry American citizens, upon children of aliens whose parents
acquire American citizenship, etc.
(3) Statutes admitting to citizenship aliens residing in the United
States during prescribed periods; thus, the Act of April 14, 1802,
admitting all persons residing in the United States before January 29,
1795, upon proof of two years residence.
(4) The statutes admitting to citizenship all persons, or specified
classes of persons, residing in purchased or conquered territory.
(5) Statutes admitting to citizenship Indians of specified tribes.
(6) Statutes and resolutions conferring citizenship upon individual al-
iens, designated by name.
(7) Practically every treaty of cession has contained provisions con-
cerning the collective naturalization of persons within the ceded ter-
ritory, sometimes with express exceptions.
The foregoing methods are treated with illustrations in Van Dyne, supra, and
Alexander Porter Morse, Treatise on Citizenship (1881). Boyd v. Thayer states that
“[t]he instances of collective naturalization, by treaty or by statute, are numerous,”
pointing out a number of such instances, and specifically upholding all such
collective naturalization as applied to persons within the territory of Nebraska.
Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 162 (1892).
Concerning naturalization of named individuals by special act or resolution,
Van Dyne states that “[t]here are numerous instances of naturalization by special
statutes.” Treatise on Naturalization at 317.
Morse states generally: “Sometimes the sovereign power or legislative will
speaks directly, and grants naturalization to a particular individual by name.”
Treatise on Citizenship § 93, at 128.
The following are instances of naturalization of named aliens by a special act or
resolution of Congress:
Nellie Grant Sartoris, married an alien and readmitted to American
citizenship by Resolution of March 18, 1898, 30 Stat. 1496.
Eugene Prince, son of an American citizen residing abroad, admitted
to citizenship by Resolution of July 19, 1912, 37 Stat. 1346.
George E. Lerrigo, son of an American citizen residing abroad, ad-
mitted to citizenship by Act of February 23, 1915, 38 Stat. 1476.
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Constitutionality of Legislation to Confer Citizenship Upon Albert Einstein
Mrs. Slidel, of Louisiana, admitted to American citizenship by spe-
cial act or resolution about 1915. Information supplied by the Bureau
of Naturalization but no act or resolution can be found—possibly ac-
counted for in that Mrs. Slidel may have been admitted under her
maiden name and afterwards married.
Joseph Beech, an alien of many years residence in the United States,
admitted to citizenship by Resolution of February 26, 1917, 39 Stat.
1495.
Frances Scoville-Mumm, American citizen married to an alien, re-
admitted to citizenship by Resolution of October 25, 1919, 41 Stat.
1449.
Augusta Louise deHaven-Alten, American citizen married to an al-
ien, readmitted to citizenship by Resolution of April 8, 1920, 41 Stat.
1463.
The Bureau of Naturalization (Mr. Volker) states that there have been other
such special acts and resolutions but that no records have been kept and that it
would be impossible to compile such cases except through the expedient of a page-
by-page examination of the statutes since the beginning of the government.
Of course, all efforts in Congress to confer citizenship by a special act or reso-
lution are not successful. For example, a resolution was introduced in the House of
Representatives on December 3, 1930, to confer citizenship upon Mr. Brent
Balchen, the renowned explorer. 74 Cong. Rec. 166. While the Resolution re-
mained undisposed of, Mr. Balchen applied for and obtained naturalization under
the general statutes. This information is supplied by the Bureau of Naturalization.
All such acts and resolutions have conferred citizenship “unconditionally,”
usually in language substantially similar to that of the resolution now pending,
except, of course, as to the part which recites the considerations upon which the
proposed action would be taken.
Mr. Volker stated that the files of the Bureau of Naturalization disclose that no
question concerning the power of Congress to confer citizenship in such manner
was raised until recent years. Formerly, they considered such questions when
presented only upon consideration of the merits of the particular case, but lately
they have inclined to the view that such naturalization may be construed as a
violation of the constitutional provision concerning “an uniform Rule.” He says
they have no authorities, but rely solely upon the language of the Constitution.
I think the view presently entertained by the Bureau of Naturalization is errone-
ous. As indicated above, the uniformity mentioned is geographical uniformity.
Prior to the Constitution when the states exercised the power of naturalization, it
was possible for a person to be a citizen in one state and an alien in another. It was
this condition which the constitutional provision was intended to remedy. Fur-
thermore, the practice, since the earliest days, is opposed to the view that Congress
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may not discriminate against or in favor of aliens upon considerations of race,
nationality, geographical residence (either abroad or in this country), relationships
by blood or consanguinity, periods of residence, education, etc. In other words,
Congress has the sole power to determine the requisites of citizenship by naturali-
zation, and to determine even more specifically who may or who may not be
admitted to such citizenship.
Mr. Volker says that they concede the power of Congress to admit to citizen-
ship directly rather than leaving it to others to ascertain the prescribed facts and
they admit the power of Congress to specify a class so limited that perhaps only
Professor Einstein might come within it. These things, I think, are necessarily true
and when you accept them, it appears to me to be somewhat inconsistent to
question the power of Congress to admit Professor Einstein to citizenship by name
and without more. Even assuming that the uniformity requirement means avoid-
ance of discrimination as applied to individual aliens, it would still be necessary to
prove that Congress would not take the same action with respect to other aliens of
similar status and circumstances in order to prove discrimination.
The files have been examined carefully and do not reveal any previous consid-
eration of such a question in this department.
Of course, it may be unwise to admit Professor Einstein to citizenship, and I
have found no case of the admission of an alien under precisely similar circum-
stances.
J.T. FOWLER, JR.
Attorney-Adviser
Office of the Assistant Solicitor General
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