Ideological restrictions on naturalization in U.S. law
Nativism and anti-anarchism at the turn of the 20th century, the red scare in the 1920s, and further fears against communism in the 1950s each shaped United States nationality law.
[6] The law empowered the President to expel aliens "judge[d] dangerous to the peace and safety of the United States" or suspected of "treasonable or secret machinations.
[20] In 1908, the Department of Commerce and Labor undertook a national survey of police chiefs, attempting to identify radicals who might be targeted for deportation.
[21] The primary effect of the Act was symbolic; it "constituted 'the small beginnings of a permanent and portentous federal policy.
It limited the exclusion of aliens to those whose "entry or proposed activities within the United States would have potentially serious adverse foreign policy consequences.
First is the requirement that the applicant be "attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.
"[34] This is essentially a political test,[35] though it "should be construed ... in accord with the theory and practice of our government in relation to freedom of conscience.
"[36] The statutory requirement is elaborated in the Code of Federal Regulations, which provides: "Attachment implies a depth of conviction which would lead to active support of the Constitution.
Attachment and favorable disposition relate to mental attitude, and contemplate the exclusion from citizenship of applicants who are hostile to the basic form of government of the United States, or who disbelieve in the principles of the Constitution.
"[37] Even still, the ideological requirement is "nebulous";[38] it begs the questions of what the "basic form of government of the United States" is and what the key "principles of the Constitution" are to which the applicant must subscribe.
In Schneiderman v. United States (regarding deportation of CPUSA California state party leader William Schneiderman), the case to develop the attachment requirement in the most detail, the court evaluated the circumstances of a young man whose naturalization was allegedly fraudulent for his failure to satisfy the attachment requirement.
[39] Upon questioning, he stated that he "subscribed 'to the philosophy and principles of Socialism as manifested in the writings of Lenin'" but "denied that he ... advocated the overthrow of the Government of the United States by force" and "considered membership in the Party compatible with the obligations of American citizenship, believing that "socialism could be achieved here by democratic processes.
"The constitutional fathers, fresh from a revolution, did not forge a political strait-jacket for the generations to come", wrote Justice Frank Murphy.
[43] These exclusions affect anarchists,[44] communists,[45] totalitarians,[45] and advocates of assassination,[46] government overthrow by force,[46] destruction of property,[46] and sabotage.
[57][60] In other contexts, regulations of speech based on content or viewpoint are presumptively invalid under the First Amendment to the United States Constitution, being evaluated using the "most exacting scrutiny.
"[63] Nonetheless, the Supreme Court has explicitly upheld viewpoint-discriminatory statutes in the context of immigration law, though its statements about the free speech rights of aliens have been "various and contradictory.
"[66] Similarly, in Kleindienst v. Mandel, the Supreme Court cited Congress's plenary power over immigration laws as the basis for applying an extremely deferential standard of review to the statutory exclusion of communist aliens from the United States.
