(dissenting).
In my opinion the appellant’s - expatriation and banishment are unconstitutional on two grounds. Congress may not discriminate against naturalized citizens. Arbitrary discrimination is not due process of law.
The Constitution empowers Congress “to establish an uniform rule of naturalization.” Artide I, § 8, Par. 4. A “rule of naturalization” regulates eligibility and procedure for becoming a citizen. It increases the number of citizens but does not divide them into classes. By authorizing Congress to prescribe who may be naturalized and how, the Constitution does not authorize it to deprive citizens either at or after naturalization of liberties that other citizens enjoy. “The power of naturalization, vested in Congress by the Constitution, is a power to confer citizenship, not a power to take it away.” United States v. Wong Kim Ark, 169 U.S. 649] 703, 18 S.Ct. 456, 477, 42 L.Ed. 890. Chief Justice Marshall said in 1824: “A naturalized citizen * * * becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize congress to enlarge or abridge those rights. The simple power of the national legislature is; to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual'. The constitution then takes him up, and, among other rights, ‘extends to him the capacity of suing in the courts of the United States, precisely under the same circumstances under which a nátive might sue.” Osborn v. United States Bank, 9 Wheat. 738, 22 U.S. 738, 827, 6 L.Ed. 204. The Supreme Court said in 1913: “Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that.of eligibility to the Presidency.”1 In the Knauer case in 1946 the Court pointed out that “there are other exceptions of a limited character” and, in a footnote, mentioned the Nationality Act.2 But in that case the Court was dealing with cancellation of an invalid naturalization because of fraud in its procurement. The Court had no opportunity to consider and decide whether a valid naturalization may be terminated because of residence abroad.
• Deprivation of liberty by severe and arbitrary discrimination is not due process of law. Aside from the Nationality Act, citizens may live abroad. By imposing a heavy penalty on the exercise of this liberty the Nationality Act takes part of it away from all naturalized citizens, regardless of their devotion to America and their connections here. All native citizens, re*623gardless of possible devotion to a foreign country and connections there, are exempt. Congress may expatriate citizens on reasonable grounds. No doubt these may include five years residence abroad. But it does not follow that Congress may expatriate some citizens and not others on this ground. The Mackenzie case3 upheld as reasonable a statute that expatriated women but not men who married aliens. Some distinctions between citizens solely because of their sex are still considered reasonable. Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198. But “distinctions between citizens solely because of their ancestry are by their very nature odious to a free people.” Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774. Distinctions because of birthplace are equally arbitrary. The fact that the appellant was born in Austria is no reason for penalizing his sojourn in Palestine. Together with the immigration law the Nationality Act makes it in effect a crime punishable by banishment, which may well be called cruel and unusual, for some citizens but not for others to live five years abroad. Even complete inability, from whatever cause, to return to the United States during the five-year period gives no immunity, and a considerable number of foreign-born Americans have therefore been banished by circumstances over which they had no control.4
The government does not contend that the habeas corpus case of United States ex rel. Lapides v. Watkins, 2 Cir., 165 F.2d 1017, in which these constitutional questions were not raised, concludes them.
Luria v. United States, 231 U.S. 9, 22, 34 S.Ct. 10, 13, 58 L.Ed. 101. Cf. United States v. Schwimmer, 279 U.S. 644, 649, 49 S.Ct. 448, 73 L.Ed. 889; Baumgartner v. United States, 322 U.S. 665, 673, 64 S.Ct. 1240, 88 L.Ed. 1525.
The entire footnote reads: “Thus a naturalized citizen must wait seven years before he is eligible to sit in the House (Article I, Section 2) and nine years before he can enter the Senate. Article I. section 3. Furthermore, a naturalized citizen may lose his American citizenship by residing abroad for stated periods. Sections 404-406, Nationality Act of 1940, 54 Stat. 1137, 1170, 8 U.S.C. §§ 804r-806 [8 U.S.C.A. §§ S04-806]. See Perkins v. Elg, 307 U.S. 325, 329 [59 S. Ct. 884, 886, 83 L.Ed. 1320].” Knauer v. United States, 328 U.S. 654, 658, 66 S.Ct. 1304, 1307, 90 L.Ed. 1504.
Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297, Ann.Cas.1916E, 645.
Involuntary Loss of American Citizenship, p. 16, Report of the Special Committee on Expatriation, National Council on Naturalization and Citizenship (March 1947X-