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### Constitutionality of Legislati on to Confer Citizenship U pon Albert Einstein

Congress has the authority to enact a law granting citizenship to Albert Einstein

.

April 9, 1934

M EMORANDUM FOR THE A SSISTANT S OLICITOR G ENERAL

The Constitution, Article I, S ection 8, C lause 4 provides that:

The Congress shall have P ower

. . . to establish an uniform Rule of

N aturaliza tion

. . . . In the early days of the g overnment the c ourts seemed inclined t o the view that the power to admit to citizenship remained in the s tates, except as Congress might provide uniform rules on the subject, which would supersede any s tate rules or laws. However, the courts soon adopted the view, which has since prevailed

unq uestioned, 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., p t. I, at 3 7 8

– 79 (1928) (digest of cases) ; United States v.

Ma cI ntosh

, 283 U. S. 605, 615 ( 1931 ) (“ Naturalization is a privilege, to be given, qualified or withheld as Congress may deter mine”). The requirement of uniformity does not appear to have been judicially consi dered 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 ca nnot be successfully que stioned on the ground that it is not uniform, in the sense of the const itution, merely because its operation or working may be wholly di ffer ent in one state from another.

13 F. 659, 667 ( C.C.D. Iowa 1882 ) (emphasis added)

. Ruling Ca se Law states that :

T he requirement of uniformity is construed to mean that the mode or manner of naturalization prescribed by Congress should have un ifor m 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 follo wing methods:Supplemental Opinions of the Office of Legal Counsel in Volume 1

418 (l) General statutes empowering the courts upon the finding of pr escribed 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

acq uire American citizenship, etc.

(3) Statutes admitting to citizenship aliens residing in the United States during prescribed perio ds; thus, the Act of April 14, 1802, admitting all persons residing in the United States before January 29, 1795, upo n proof of two years residence.

(4) The statutes admitting to citizenship all persons, or specified classes of persons, residing in pu rchas ed or conquered territory.

(5) Statutes admitting to ci t i zensh ip Indians of specified tribes.

(6) Statutes and resolutions conferring citizenship upon individual a liens, designated by name.

(7) Practically every treaty of cession has contained provisions c o ncerning the collective naturalization of persons within the ceded te rr i tory, som etimes with express exceptions.

The foregoing methods are treated with illustrations in Van Dyne

, supra , and Alexander Porter Morse, Treatise on Citizenship (1881). Boyd v. T hayer states that “[t] he instances of collective naturalization

, by treaty or by statute

, are numer ous, ” pointing out a number of such instances, and specifically upholding all such collective naturalization as applied to persons within the territory of Ne braska. 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 natur alization by special

statutes. ” Treatise on Naturalization at 317.

Morse states generally : “ S ometimes 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 naturaliz ation 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 1 8, 1898

, 30 Stat. 1 496.

Eugene Prince, son of an American citizen residing abroad, admi tted to citizenship by Resolution of July 19, 1912, 37 Stat. 1346.

George E. Lerrigo, son of an American citizen residing abroad, a dmitted to citizenship by Act of February 23, 1915

, 38 Stat. 1476

.Constitutionality of Legislation to Confer Citizenship Upon Albert Einstein

419 Mrs. Slidel, of Louisiana, admitted to American citizenshi p by sp ecial act or resolution about 1915

. Information supplied by the Bureau

of Naturalization but no act or resolution can be found

— possibly a ccounted for in that Mrs. Slidel may have been admitted under her

maid en name and afterwards married.

Joseph Bee ch, an alien of many years residence in the United States, admitted to citizenship by Resolution of February 26, 191 7 , 39 Stat.

1495.

Frances Scoville

- Mumm, American citizen married to an alien, r eadmitted to citizenship by Resolution of O ctober 25, 1919, 41 Stat.

1449.

Augusta Louise deHaven

- Alten, American citizen married to an a lien, 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 re solutions 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 statu tes since the beginning of the g overnment. Of course, all efforts in Congress to confe r citizenship by a special act or res olution 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 b y the Bureau of Naturalization.

All such acts and resoluti ons have conferred citizenship “ unconditionally ,”

u sually 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 Naturalizati on disclose that no question concerning the power of Congress to confer citizenship in such manner was raised until recent years. Formerly, t hey considered such questions when presented only upon consideration of the merits of the particular case, but late ly they have inclined to the view that such naturalization may be construed as a

violation of the c onst itutional provision concerning “ an uniform R ule. ” He says they have no authorities, but rely solely upon th e language of the Constitution.

I think the view presently entertained by the Bureau of Naturalization is erron eous. 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 c onstitutional provision was intended to remedy. Fu rthermore, the practice, since the earliest days, is opposed to the view that CongressSupplemental Opinions of the Office of Legal Counsel in Volume 1

420 may not discriminate against or in favor of aliens upon considerations of race, nationality, geographical residen ce (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 natural ization, and to determine even more specifically who may or who may not b e admitted to such citizenship. Mr. Volker says that they concede the power of Congress to admit to citize nship 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 m e 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 avoi dance of discrimination as applied to individual aliens, it would s till 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 consi deration o f such a question in this d epartment. 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 circu mstances.

J.T. FOWLER, JR. Attorney

- Adviser Office of the Assistant Solicitor General