Trop v Dulles

Parties (including notable third parties)

Petitioner: Albert Trop; Respondent: John Foster Dulles, Secretary of State

---

Summary of Facts

The Petitioner was a citizen of the United States of America (‘US’/‘USA’). While serving in the US Army in French Morocco in 1944, the Petitioner was court-martialled and found guilty of having twice escaped from military confinement, of having been absent without leave and having deserted the Army and remaining in desertion for one day before returning to the barracks in Morocco. Following the court martial, the Petitioner was dishonourably discharged from the Army. Unbeknownst to him, the court-martial convictions led to the loss of the Petitioner’s citizenship.

Subsequent to his return to the USA, in 1952 the Petitioner applied for a passport which was denied by the USA State Department under Section 401(g) of the Nationality Act of 1940.  Section  401(g) stated ‘A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: …(g) Deserting the military or naval forces of the United States in time of war, provided he is convicted thereof by court martial and as the result of such conviction is dismissed or dishonorably discharged from the service of such military or naval forces …’. The USA Congress’ power to enact Section 401(g) was asserted by the Respondent to be based on the Government’s power to raise and maintain military forces to wage war (the ‘war power’).

In 1955, the Petitioner commenced proceedings in the lower USA courts seeking a declaratory judgment that he was a citizen. The first instance United States District Court granted the Respondent’s motion of summary judgment, and this decision was upheld by the Court of Appeals for the Second Circuit. The Petitioner then appealed to the United States Supreme Court.

---

Legal Arguments

Legal Arguments by the Petitioner

The Petitioner argued that Section 401(g) was not applicable to his circumstances of being dishonourably discharged from the Army. The Petitioner also argued that Section 401(g) was invalid under the US Constitution on the grounds that it went beyond the scope of the war power, or it amounted to cruel and unusual punishment in breach of the prohibition against cruel and unusual punishment under the Eighth Amendment to the Constitution.

Legal Arguments by the Respondent

The Respondent argued that Section 401(g) was a regulatory provision authorized by the war power, and therefore the constitutional limitations on the Government’s ability to impose a penalty were inapplicable. Furthermore, denationalisation could not be considered a penalty as it was a consequence analogous to deportation of aliens, and the US Supreme Court had considered deportation to not be penal. Finally, the Respondent argued that denationalisation was not cruel and unusual punishment in the circumstances as ‘desertion constituted a refusal to perform one of the highest duties of American citizenship’ (page 113).

Outcome

The majority of the Supreme Court determined that Section 401(g) went beyond the scope of the war power, and that it amounted to cruel and unusual punishment in violation of the Eighth Amendment and was therefore unconstitutional.

Regarding the scope of the war power, the Supreme Court considered that Section 401(g) had the purpose of punishing convicted deserters and there was no other ‘legitimate purpose’ the statute could serve. While the war power permitted Congress to regulate the military (for example, the law that says soldiers must not desert the army), laws that prescribe the consequences of not complying with regulatory provisions are penal in nature and will go beyond the war power if the provision is not necessary for a regulatory function to be undertaken.

Regarding the Respondent’s argument based on an analogy between deportation and denaturalisation, the Supreme Court drew a distinction between the deportation of non-citizens, which is based on a nation’s power to determine the conditions upon which aliens may reside in the country, and asserting the power to denationalize citizens.

If the Supreme Court assumed that Congress did have the power to enact penal legislation that divests citizenship, the Court then considered whether Section 401(g) was ‘cruel and unusual punishment’ within the meaning of the Eighth Amendment. The Court held this was ‘a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in development. The punishment strips the citizen of his status in the national and internal political community. His very existence is at the sufferance of the country in which he happens to find himself’ (page 102).

The Supreme Court also commented that Section 401(g) in effect gave military authorities the power to cause a citizen to lose their citizenship, which was not a power that the military was entitled under the Constitution to exercise.

The dissenting judges determined that Section 401(g) was not penal in nature as it was directed at the ‘non-penal’ purposes of the government to regulate military forces. The dissenting judges also considered that to the extent the provision was penal, it was not ‘cruel and unusual’ in the context of the ‘seriousness of abandoning one’s own country when it is in the grip of mortal conflict’ (page 126).

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	Nationality Act of 1940	§ 401(e), (g) & (j)
Domestic	Constitution of the United States	Eighth Amendment

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Courtney Christensen, ‘Trop v. Dulles: How Earl Warren’s Contradicting Legal Opinions Secured Trop’s Victory’ (2021) 46 Journal of Supreme Court History 221

• This article contains an analysis of the background to and the procedural history of Trop v Dulles, including the oral arguments and the draft opinions of the judges. The author analyses the majority opinion, considering the issues of the scope of Congress’ powers under the Constitution and the interpretation of the Eighth Amendment.