This should prove interesting, if only from the legal perspective. Texas Senator Ted Cruz announced that he will be filing the Expatriate Terrorist Act next week. The legislation, if passed, is intended to strip the citizenship of any Americans who take up arms to fight with ISIS.

“Americans who choose to go to Syria or Iraq to fight with vicious ISIS terrorists are party to a terrorist organization committing horrific acts of violence, including beheading innocent American journalists who they have captured,” Cruz said in a statement.

“There can be no clearer renunciation of their citizenship in the United States, and we need to do everything we can to preempt any attempt on their part to re-enter our country and carry out further attacks on American civilians.”

Sen. Rand Paul (R-Ky.) gave support to a similar proposal in a Time magazine op-ed Thursday.

Cruz’s bill would apply to those providing support only to foreign terrorist groups and would result in that person technically renouncing his citizenship “with the intent of supplanting his U.S. citizenship with loyalty to a terrorist organization.”

This prompted two immediate thoughts for me when I read it. The first was the more emotional response of, Heck Yeah! While the more preferable outcome might be to revoke a lot more than their travel documents by having a drone visit them, there are few things which would seem like justification for booting someone from America’s shores than heading off to fight with the terrorists.

The second response, though, was a question. Can we do that? Cruz is an accomplished attorney, legal scholar and law professor, so I assume he’s already thought this through, but the mechanics of how Congress would do this will be interesting.

A lot of this depends on the type of citizenship that the American ISIS fighters have to begin with. If they happen to be naturalized citizens, there is little to no impediment to revoking that status through a process commonly known as denaturalization. (In fact, it’s been done plenty of times in the past.) But the issue seems a bit more cloudy if the traitors were natural born citizens of the United States. FindLaw (which I generally find a good source for legal explanations geared to the layman) has this to say. (Emphasis mine.)

Although rare, it is possible for a naturalized U.S. citizen to have his or her citizenship stripped through a process called “denaturalization.” Former citizens who are denaturalized are subject to removal (deportation) from the United States. Natural-born U.S. citizens may not have their citizenship revoked against their will, but may choose to renounce their citizenship on their own.

This all comes from Article I Section 8, which grants Congress the power to establish uniform rules for naturalization, but doesn’t have much to say about those who are natural born citizens. I was looking around this morning, in fact, and couldn’t find a single example of a natural born US citizen who lost their citizenship against their will. This should not be confused with people who are in exile or have their passport revoked. One of the most recent and high profile examples would be Edward Snowden, currently living in effective exile in Russia and with a cancelled passport, but he’s still technically a US citizen.

The ability to remove citizenship – even in the vast majority of cases of naturalized citizens – seems to rely heavily on the need for the subject to voluntarily relinquish their status. The big precedent for these cases tends to be Afroyim v. Rusk (1967) which found as follows:

Held: Congress has no power under the Constitution to divest a person of his United States citizenship absent his voluntary renunciation thereof. Perez v. Brownell, supra, overruled. Pp. 256-268.

(a) Congress has no express power under the Constitution to strip a person of citizenship, and no such power can be sustained as an implied attribute of sovereignty, as was recognized by Congress before the passage of the Fourteenth Amendment, and a mature and well considered dictum in Osborn v. Bank of the United States, 9 Wheat. 738, 827, is to the same effect. Pp. 257-261.

Rick Moran already looked into it and came to the same conclusion I’m leaning toward.

Currently, natural born citizens of the US cannot have their citizenship revoked against their will. It is unclear whether Cruiz’s bill would supercede the denaturalization law. It is also against international law to strip an individual’s citizenship if they are not also a citizen of another country. In other words, the US cannot create a “stateless” person that no other country would accept.

Let the courts sort it out. In the meantime, stripping US citizenship and denying entry to returning terrorists is a good idea whose time has come.

Vox Popoli brings up another unsettling aspect of this proposal. What sorts of abuse could such a law open the door for?

Prediction: once the IRS realizes that this legislation would provide an cost-efficient means for expatriates to get rid of their US citizenship, it will become a non-starter. In fact, with the recent 400 percent increase in administrative fees, (it now costs about $2,500 to drop your citizenship even though it’s about a two-minute process) it would probably cost less to do it by simply donating to ISIS.

While a valid sounding concern, that’s not the first one that came to mind for me. You already know how much the Left loves to classify any extreme right wing activists as “domestic terrorists.” (See the Cliven Bundy ranch scenario, et. al.) If you establish that taking up arms “against the rule of law” could be read as an implied request to relinquish citizenship, one can only imagine the people who would begin being dragged into court and launched into a “stateless” person lifestyle.

And in the end, it all comes down to voluntary consent. In his statement, Cruz included the phrase, There can be no clearer renunciation of their citizenship in the United States, which may mean that he intends to show that the act of voluntarily going to foreign shores to fight for a terrorist group aligned against the interests of the United States would constitute a voluntary desire to relinquish their status as citizens. But I’m not sure how the courts would view that one, no matter how much we might like to support the idea. And we need to wonder what sort of twists and turns lie down that road.