WASHINGTON ― The chief justice of the United States has broken the law.
John Roberts made the unexpected confession on Wednesday as he and his Supreme Court colleagues considered a case that tests some of the circumstances the federal government may use to strip naturalized Americans of citizenship rights.
“Some time ago, outside the statute of limitations, I drove 60 miles an hour in a 55-mile-an-hour zone,” said Roberts, drawing laughter from those in the courtroom. But the chief didn’t crack a smile.
“I was not arrested,” he added.
The justices were considering a criminal statute that penalizes anyone who “procures” U.S. citizenship in a way that is “contrary to law.” The government pressed the argument that any lie on an official form, no matter how small, is a violation that could trigger the loss of citizenship.
But Roberts and some of the other justices seemed troubled by the implications for a vast swath of Americans. Roberts pointed out that some questions on naturalization forms are written broadly, so as to catch any little misrepresentation or omission that an overzealous prosecutor may later deem “material false statements” that could mean you should no longer be an American.
One question on the naturalization form, for example, asks citizenship applicants to disclose any and all crimes, offenses or attempts to break the law for which they haven’t been arrested — ever.
Zeroing in on the word “offense,” which a legal dictionary says includes even “minor” violations of the law, Roberts suggested that the government could potentially go after those who fail to disclose minor slip-ups years earlier.
“Now, you say that if I answer that question ‘No,’ 20 years after I was naturalized as a citizen, you can knock on my door and say, ‘Guess what, you’re not an American citizen after all,’” Roberts said. “Is that right?”
When Robert Parker, the Trump administration lawyer who argued for the government, answered that authorities expect applicants for naturalization to disclose even trivial violations, Roberts wasn’t having it.
“Oh, come on,” Roberts retorted. “You’re saying that on this form, you expect everyone to list every time in which they drove over the speed limit, except when they were arrested?”
Justice Stephen Breyer, one of the court’s more liberal members, seemed just as bothered.
“It’s, to me, rather surprising that the government of the United States thinks that Congress is interpreting this statute and wanted it interpreted in a way that would throw into doubt the citizenship of vast percentages of all naturalized citizens,” Breyer said.
You’re arguing for the government of the United States — talking about what citizenship is and ought to mean. Justice Anthony Kennedy
Justice Elena Kagan added a lighthearted twist to Parker’s argument.
“I am a little bit horrified to know that every time I lie about my weight, it has those kinds of consequences,” she said.
The dispute arose when Divna Maslenjak, an ethnic Serb who was admitted as a refugee into the U.S. alongside her husband and kids, was later indicted for lying on her naturalization form. It turns out her husband had served in the Bosnian Serb military during the Bosnian civil war and was implicated in war crimes, but during her asylum interview, she had told immigration officials a different story: that the couple feared persecution because the husband wouldn’t serve in the military.
When Maslenjak applied for citizenship years later, she denied in her application that she answered no when asked if she had ever lied about this and other information for purposes of obtaining an immigration benefit. This, in turn, prompted her prosecution for lying to the government, as well as court proceedings to strip her of her citizenship.
“Why isn’t this obviously material?” asked Justice Ruth Bader Ginsburg of Christopher Landau, Maslenjak’s lawyer. “She lied about her husband’s ... she said he was trying to avoid military conscription when, in fact, he was in the service and in the unit that was committing atrocities.”
Lower courts across the country are split on the gravity of the lies that may lead to denaturalization, and the Supreme Court must now determine what the threshold is. But by and large, a clear majority of the justices wasn’t comfortable with where the federal government wants it to be.
Justice Anthony Kennedy, who has written landmark opinions about how the law bestows dignity on all people, said the administration’s argument “is demeaning the priceless value of citizenship.”
“That’s not what our cases say. That’s not what citizenship means,” Kennedy told Parker. In the last decade, more than 6.6 million people have become naturalized Americans, according to U.S. Citizenship and Immigration Services.
“You’re arguing for the government of the United States — talking about what citizenship is and ought to mean,” Kennedy added. (Both the Obama and Trump administrations have held the same position in the case, which has been ongoing for several years.)
In the end, it was Roberts, the court’s leader, who saw the severity of the government’s position for what it is: as an opening for prosecutorial overreach.
“If you take the position that ... not answering about the speeding ticket or the nickname is enough to subject that person to denaturalization,” Roberts said, “the government will have the opportunity to denaturalize anyone they want, because everybody is going to have a situation where they didn’t put in something like that ― or at least most people. And then the government can decide, ‘We are going to denaturalize you for other reasons than what might appear on your naturalization form, or we’re not.’
“And that to me ... is troublesome to give that extraordinary power, which, essentially, is unlimited power, at least in most cases, to the government,” Roberts added.
The Supreme Court may well decide that only egregious, “material” lies count for the purposes of stripping someone’s citizenship — a requirement that could stand as a roadblock for tougher immigration measures in the Trump era.
The case, Maslenjak v. United States, is the last case the Supreme Court heard before the end of the current term. Between now and the end of June, the justices are expected to issue decisions on cases they’ve already considered.