The Citizenship of Draft Evaders after the Pardon

Volume 22 Issue 3 Article 1 1976 The Citizenship of Draft Evaders after the Pardon Joseph W. Dellapenna Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Military, War, and Peace Commons Recommended Citation Joseph W. Dellapenna, The Citizenship of Draft Evaders after the Pardon, 22 Vill. L. Rev. 531 (1976). Available at: https://digitalcommons.law.villanova.edu/vlr/vol22/iss3/1 This Article is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Dellapenna: The Citizenship of Draft Evaders after the Pardon Villanova Law Review VOLUME 22 1976-1977 NUMBERS 3-4 THE CITIZENSHIP OF DRAFT EVADERS AFTER THE PARDON JOSEPH W. DELLAPENNAt I. INTRODUCTION O Nthose JANUARY 21, 1977, PRESIDENT CARTER PARDONED who removed themselves from the United States to avoid induction for military service during the Vietnam era.' The pardon restored full rights with certain exceptions. The accompanying executive order directed the admission of aliens barred from entry into the United States because they "have departed from or ... remained outside the United States to avoid or evade training or service in the armed forces in time of war or a period declared by the President to be a national emergency." 2 Neither the pardon itself nor the executive order says anything about citizenship. Nevertheless, it was widely reported at the time that any pardoned person who had 3 become a citizen of another country would continue to be an alien. It was reported that such people could visit the United States, and might even become citizens, but in both respects they would be treated as were :other aliens. The New York Times on the:other hand, reported that only those draft evaders who had been "legally declared to be 'undesirable aliens'" would be forced to recover their citizenship as immigrants. 4 Both interpretations purported to report t Associate Professor of Law, Villanove University School of Law. B.B.A. University of Michigan, 1965; J.D., Detroit College of Law, 1968; LL.M., George Washington University, 1969; LL.M., Columbia University, 1975. 1. Exec. Order No. 11,967, 42 Fed. Reg. 4393 (1977); Proc. No. 4483, 42 Fed. Reg. 4391 (1977). The presidential proclamation and its accompanying executive order are reprinted in the New York Times. N.Y. Times, Jan. 22, 1977, at 10, col. 2. 2. 8 U.S.C. § 1182(a)(22) (1970); see Exec. Order No. 11,967, § 3, 42 Fed. Reg. 4393 (1977). Although the executive order refers to any person, this statute covers aliens exclusively. 3. See, e.g., Phila. Inquirer, Jan. 22, 1977, at 5, col. 3. The Inquirer quoted Jody Powell, the White House Press Secretary, as saying: "[DIraft evaders who have become citizens of another country are free to come home to visit their families. If they wish to regain their citizenship, however, they will have to apply under the same terms as any other alien. . . ." Id.; see NBC Nightly News for Jan. 21, 1977; Trumbull, Evaders in Canada Call Action a Sham, N.Y. Times, Jan. 22, 1977, at 11, col. 1. 4. Mohr, Carter Pardons Draft Evaders, Orders a Study of Deserters, N.Y. Times, Jan. 22, 1977, at 1, col. 6 & at 10, col. 2. This statement was also attributed to Jody Powell and contradicted another Times report on the facing page. See Trumbull, supra, note 3. (531) Published by Villanova University Charles Widger School of Law Digital Repository, 1977 1 Villanova Law Review, Vol. 22, Iss. 3 [1977], Art. 1 VILLANOVA LAW REVIEW [Vol. 22: p. 531 the words of White House Press Secretary Jody Powell. Presumably Mr. Powell was announcing the "official" interpretation of the pardon's effect. Whichever version was the accurate report, however, is immaterial, as both statements are wrong. Equally wrong is the view espoused by the Foundation of Law and Society, seeking a declaratory judgment that those who fled the country to avoid the draft lost their citizenship. 5 Under the law regarding loss of citizenship, the determination of loss does not depend on the acceptance of citizenship elsewhere, nor on some "legal declaration" of undesirable alienage, nor on leaving the country to evade the draft. The first criterion sweeps too broadly: it includes many who have not lost their citizenship. The second criterion is too narrow: evaders other than those whose status has already been tested in court will find that they have lost their citizenship. The third criterion is simply irrelevant. The true criterion by which loss of citizenship is tested for most citizens 6 is the determination of whether there has been a "voluntary renunciation" of such citizen7 ship. This article will consider the manner of proving voluntary renunciation and attempt to relate this criterion to draft evaders. This article seeks not to advocate what ought to be, but to discover what is. It examines the several categories of draft evaders, for many of whom citizenship status is clearly determined. However, it will be shown that the citizenship of some draft evaders is so uncertain that it may only be established finally by a decision of the Supreme Court of the United States. This category includes individuals who have neither elected to take other citizenship nor expressly renounced their United States citizenship. In order to determine which evaders fit into each category, and to appraise the prospects of those evaders whose citizenship is uncertain, this article will explore the parameters of voluntary renunciation. Before developing a meaning of voluntary renunciation and ascertaining the required proof for such renunciation, one must understand how 5. Daughtrey v. Carter, No. 77-0187 (D.D.C., filed Feb. 2, 1977); see Phila. Inquirer, Feb. 3, 1977, at 5-D, col. 5. Apparently, the Foundation of Law and Society's suit is based on 8 U.S.C. § 1481(a)(10) (1970). Apart from standing problems, plaintiffs will have serious difficulties on the merits, as this section was held unconstitutional in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). See note 27 infra. 6. The fourteenth amendment defines citizens as "[all persons born or naturalized in the United States, and subject to the jurisdiction thereof. . . ." U.S. CONST. amend. XIV, § 1. Persons who are naturalized outside the United States are not protected in their citizenship by this amendment. Rogers v. Bellei, 401 U.S. 815 (1971). Hereinafter, unless otherwise indicated, the word "citizen" in this article refers only to citizens as defined and protected by the fourteenth amendment. The special problems of non-fourteenth amendment citizens will be considered only at the end of the article. See text accompanying notes 131-36 infra. 7. Afroyim v. Rusk, 387 U.S. 253 (1967). https://digitalcommons.law.villanova.edu/vlr/vol22/iss3/1 2 Dellapenna: The Ci (...truncated)