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Chapter 12 American Citizenship Is Secured: “May Perez Rest in Peace!” There would be no break in the battle brewing on the Supreme Court. On April 7, 1958, one week after deciding Trop and Perez, the Court remanded another expatriation case—Mendoza-Martinez—for reconsideration in light of Trop.1 Francisco Mendoza-Martinez was born in the United States in 1922 “and therefore acquired American citizenship by birth.”2 Under Mexican law, he was also a Mexican citizen, and in 1942, Mendoza-Martinez moved there in order to avoid serving in the U.S. military during World War II. In November 1946, he returned to the United States, was convicted by a federal court in 1947 of evading the draft, and served the imposed sentence of a year and a day. He remained in the United States without issue until 1953 when he was arrested and ordered deported by the Department of Justice based on a provision in section 401(j) of the Nationality Act of 1940 stripping draft dodgers of their American citizenship.3 After the Board of Immigration Appeals rejected his appeal, MendozaMartinez filed a new suit asking that a federal court find him to be an American citizen and declare section 401(j) unconstitutional. The court rejected Mendoza-Martinez’s suit, but he appealed, eventually reaching the Supreme Court, which, sent the case back down to the district court to be reconsidered in light of the Supreme Court’s recent decision in Trop. On September 24, 1958, the district court declared on remand that section 401(j) was unconstitutional.4 The Mendoza-Martinez case was debated again in conference on December 11, 1959, and six of the justices indicated that they would join an opinion to declare him expatriated. Justice Felix Frankfurter, as the senior member of the majority, assigned the majority opinion to Justice Potter Stewart, who American Citizenship Is Secured 167 sent around to the other justices a proposed opinion that argued that the military draft was a vital objective in a time of war and evading it should be interpreted as a voluntary expatriation. Justice William Brennan indicated that he would side with the majority in expatriating Mendoza-Martinez, but declined to join the court’s opinion, relying instead on Mendoza-Martinez’s status as a dual citizen as the basis for expatriation.5 Meanwhile, Chief Justice Earl Warren, together with Justices William O. Douglas and Hugo Black, strongly opposed the majority’s holding. Warren questioned why, if the federal government considered Mendoza a foreigner, it could have him condemned as a draft evader, as foreigners are not subject to the draft. But Stewart’s majority opinion was never issued. Instead, the Court once again sent the case back down to the trial court, this time to consider whether Mendoza-Martinez’s conviction for draft evasion—a crime that is only applicable to American citizens—prevented the government from now claiming that Mendoza-Martinez lacked American citizenship. The trial court rejected this argument but also reaffirmed its previous conclusion regarding the unconstitutionality of Section 401(j). The government appealed and, eventually, the case again reached the Supreme Court for a third time. Brennan had at this point shifted his position to oppose expatriation and now tried to delay what he feared would be an unfavorable decision.6 On October 5, 1961, Brennan raised with the other justices an issue that he maintained should justify a third remand: could a declaratory judgment that a federal law was unconstitutional be issued by a single judge, as had happened in the Mendoza-Martinez case, or was a three-judge panel required? But the rest of the Court declined to send back down a case that they already perceived to have been unduly delayed. By October 13, 1961, a five-justice majority still favored reversal of the lower court decision (Frankfurter, Harlan, Whittaker, Stewart, and Clark), and Stewart was again assigned to write the majority opinion. In January 1962 Stewart circulated another draft which justified the constitutionality of Mendoza-Martinez’s expatriation under the war power: Congress had legitimately exercised this power “to recognize an abandonment of citizenship by those who have abandoned this nation to avoid defending it in time of war.”7 But this time Whittaker reacted to the Stewart draft opinion by declaring that he would concur only in the result. He refused to agree with Stewart that war power “authorizes Congress to divest one born in this country of his United States citizenship.”8...

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