(dissenting) .
It is apparent from the review of relevant legislation in the majority opinion that a strong case exists for holding that Congress reasonably concluded that a relation or nexus exists between the conduct of foreign affairs and residence abroad of some naturalized citizens. This I would not dispute. But when we consider whether the means adopted, and applied in this case, to further the conduct of foreign affairs meet the requirements of due process of law a more difficult problem is presented. Thus, such relation to or nexus with foreign affairs (1) may exist with respect to some native-born citizens who reside abroad, and is not limited to naturalized citizens; (2) is not shown to exist in all cases of naturalized citizens whose residence abroad brings them within Section 352 (а) (1); (3) appears not to have been weighed by Congress in connection with the impact of Section 352(a) (1) upon the citizenship of one group of Americans vis-a-vis another; (4) is with respect to aspects of foreign affairs which are administrative and routine in nature rather than those ordinarily associated with the authority of the Executive and of Congress to conduct the foreign affairs of the nation; (5) is largely due to problems arising from dual nationality; (б) creates problems not shown to be incapable of reasonable solution by means less drastic than the total deprivation of nationality.
Conscious of the deference the courts must accord to the Acts of Congress, conscious also of the judicial obligation when the application of an Act to an individual deprives him or her of the priceless attribute of American citizenship, and renders him or her stateless, Trop v. Dulles, 356 U.S. 86, 103, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), and conscious further of the characterization by the Supreme Court of such deprivation in other circumstances as a cruel and unusual punishment, I conclude for the reasons now to be discussed that the application of Section 352(a) (1) so as to deprive plaintiff of her citizenship by operation of law would be inconsistent with due process of law.
Legislation seeking to terminate nationality has been considered by the Supreme Court in three recent cases. Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603 (1958), Trop v. Dulles, supra, and Kennedy v. Mendoza-Martinez, and Rusk v. Cort, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). In Perez denationalization of a native-born was upheld under Section 401(e) of the Na*316tionality Act of 1940, now part of Section 849 of the Act of 1952, 8 U.S.C. § 1481(a) (5), which provides for the loss of nationality by
“voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory * * * ”
A nexus was found between the power of Congress over the conduct of foreign affairs and “active participation, by way of voting, of American citizens in foreign political elections.” 356 U.S. at 59 and 60, 78 S.Ct. at 576. It was said that withdrawal of citizenship was reasonably calculated to effect an end which Congress could lawfully achieve, namely, the avoidance of embarrassment in the conduct of our foreign relations. The Court added, however,
“[T]he fact is not without significance that Congress [had] interpreted this conduct, not irrationally, as importing not only something less than complete and unswerving allegiance to the United States but also elements of an allegiance to another country in some measure, at least, inconsistent with American citizenship.”
356 U.S. at 60-61, 78 S.Ct. at 577.
In Trop v. Dulles, supra, decided the same day, the Court held that a native-born American did not lose his citizenship and become a stateless person as a result of a court martial conviction for desertion followed by a dishonorable discharge. In so deciding the Court held Section 401(g) of the Nationality Act of 1940, as amended, to be unconstitutional.1 The Chief Justice, joined by Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Whittaker, while accepting Perez as upholding congressional' authority to denationalize — contrary to-their dissenting views in Perez — 2 as distinct from recognizing the right of voluntary expatriation, nevertheless concluded that to terminate Trop’s nationality under Section 401(g) would be cruel and unusual punishment, violative of Article VIII of the Constitution. Mr. Justice Brennan joined in holding the Section unconstitutional. He pointed out that the conditions which led him to sustain denationalization in Perez were not. met in Trop; there was not the requisite rational relation between Section 401(g) and the power relied upon by Congress to support the deprivation, namely, the-power “to raise and maintain military forces to wage war.”
In Kennedy v. Mendoza-Martinez,. supra, which I shall refer to without separate mention of the companion Cort case, the Court held invalid Section 401 (j) of the Nationality Act of 1940, like- § 349(a) (10) of the Act of 1952, 8 U.S.C. § 1481(a) (10), which sought to-deprive an American of his nationality for departing from and remaining outside the jurisdiction of the United States in time of war for the purpose of evading military service. As in Trop the Court held that this was punishment for the proscribed conduct and, all else aside,, could not be inflicted in a manner which did not comply with the procedural safeguards of the Bill of Rights, particularly those of the Fifth and Sixth Amendments.
In our own earlier case of Lapides v. Clark, 85 U.S.App.D.C. 101, 176 F.2d 619 (1949), denaturalization was upheld under the statutory provision:, “A person who has become a national by naturalization shall lose his nationality by * * * (c) Residing continuously for *317five years in any other foreign state” with exceptions not applicable. Judge Edgerton dissented on the grounds (1) Congress may not discriminate against naturalized citizens and (2) arbitrary discrimination is not due process of law. He relied in part upon United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890 (1898), and the opinion of Chief Justice Marshall in Osborn v. United States Bank, 22 U.S. (9 Wheat.) 738, 6 L.Ed. 204 (1824). Citing Mackenzie v. Hare, 239 U.S. 299, 311, 36 S.Ct. 106, 60 L.Ed. 297 (1915), the opinion of the majority in Lapides referred to the implied power of Congress to provide for denationalization upon the basis of a classification which had a reasonable relation to a legitimate legislative end. The end sought was to lessen friction with foreign governments, and the legislation was also said to deal with a condition “voluntarily brought about by one’s own acts, with notice of its consequences,” for which reason it was said there was concurrence by the citizen in the loss of nationality. The intervening Supreme Court opinions, both majority and minority, in Perez, Trop and Mendoza-Martinez, do not rely upon a theory of concurrence, and so I do not accept the views in that regard expressed in Lapides. Voluntary residence abroad of a nationalized citizen for a longer period than is specified in Section 352(a) (1) does not constitute voluntary expatriation. Such residence does not deprive the national of the right to challenge the validity of the Section.
Coming now to the earlier Supreme Court case of Mackenzie, leaned upon in Lapides, it was there held that a statute which provided that “any American woman who marries a foreigner shall take the nationality of her husband” — a provision no longer in our statutes — involved the ancient principle of identity of husband and wife, then to some degree still adhered to. This permitted Congress to impute to the wife a kind of voluntary renunciation of citizenship or expatriation. Without attempting to explore the areas within which the law may treat the sexes differently — the power to do so consistently with due process is hardly deniable — it is noted- that the Chief Justice, dissenting in Perez, pointed out that the effect of Mackenzie was only to hold in abeyance the citizenship of the American woman, rather than to terminate it. 356 U.S. at 69-73,3 78 S.Ct. at 581-584.
Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287 (1950), was also relied upon in Lapides. There the native born American was found to have expatriated herself by applying for and obtaining naturalization as a citizen of Italy and by taking an oath of allegiance to the King of Italy. In thus expatriating herself she exercised a right long recognized by the United States and restated in Trop.
I come to consider the present case in light of the foregoing decisions, particularly those recently decided by the Supreme Court. In the first place the statute has about it something of the nature of legislative banishment. It applies only to a well defined group of citizens, who are subjected to a particular deprivation to follow automatically from conduct the statute proscribes, which takes no account of variations among individual cases. It appears to be an effort to regulate, although indirectly, conduct that occurs only in a foreign state, engaged in by persons whose presence there might be troublesome. Advised that it was difficult to prevent or remedy locally in the foreign states, through diplomatic *318channels, whatever the “difficulty and embarrassment” might be, and eschewing other possible remedies should embarrassment in fact occur, Congress was persuaded to legislate a process which cuts off the offending citizen from the American body politic.4 The majority opinion refers to the statement in Perez that this terminates the problem by terminating citizenship. Such a remedy for the problem posed by the Executive in 1938 and involved in the present case, though not in Perez, raises constitutional questions which are not answered by pointing to the administrative convenience to be achieved in this manner, the principal basis which was advanced for the remedy.5 President Truman’s Commission on Immigration and Naturalization in 1953 said the following about the denaturalization provisions here involved:
By attaching strings to a naturalization order, they create a body of citizens unable to do, except on penalty, what other citizens may do.
“The United States, while claiming for aliens within its jurisdiction, and freely conceding to its citizens in other jurisdictions the right of expatriation, has always maintained that the transfer of allegiance must be by a distinctly voluntary act, and that the loss of citizenship cannot be imposed as a penalty nor a new national statute forced as a favor by one Government upon a citizen of another.” U.S. For. Eel., 1886, 723.
Secondly they undo a judicial determination without the benefit of court action. * * * Judgments in naturalization should [like other court decrees] be vested with finality. If fraud in obtaining naturalization is suspected, a judicial proceeding to set aside the judgment is necessary. The loss of naturalized citizenship by reason of mere residence abroad should not result from legislative fiat.
“Whom We Shall Welcome,” Report of the President’s Commission on Immigration and Naturalization 239-40 (1953). I do not say, however, that denationalization under Section 352(a) (1) is punishment; it does not appear that Congress intended by this Section to effect “retribution and deterrence,” though the provision points in that direction.6
*319Another aspect of the problem is noted preliminarily to enlargement upon the view that the statute violates the Fifth Amendment in its discrimination against naturalized citizens, the chief basis for my dissent. It is by no means clear that deprivation of citizenship for foreign residence is a proper exercise of the foreign relations power in the case of this plaintiff, aside from its discriminatory feature. The premise stated by Mr. Justice Frankfurter in Perez, supra, to sustain the loss of citizenship where the individual had voted in a foreign election, should not be read as holding that such a power sweeps all before it. Voting has traditionally been considered one way a person indicates his political allegiance. And our earliest statute on denationalization had to do primarily with codifying the ways by which it could be objectively determined that a citizen had exercised his right voluntarily to expatriate himself.7 It does not follow that any governmental action connected in some way with foreign relations can be judicially approved notwithstanding the Bill of Rights. And our constitutional authority is not defined by reference to the sovereign powers of other nations. For ours is a limited government, deliberately so designed with certain rights guaranteed against invasion by the Government.
The right to a nationality is a fundamental one. Our Government has approved the provisions to that effect in the Universal Declaration of Human Rights, Art. 15. Of course under principles of international law a state may decide for itself what criteria must be met in order that citizenship may be achieved. See United States v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889 (1929); Briggs, The Law of Nations 459-62 (1952). And the United States is not bound by a treaty on the subject. A Covenant was to follow the Declaration of Human Rights but has not been entered into. Nevertheless it will no doubt be generally acknowledged that persons may not arbitrarily be deprived of their nationality, an attribute-essential to the full possession of personal dignity. Especially is this so when statelessness results from denationalization.
“In recent times statelessness has become a serious problem. It is an anomaly in the international legal order. A stateless person does not enjoy the protection of any state and is often excluded from many rights and privileges in the state where he resides.”
“The Universal Declaration of Human Rights, A Standard of Achievement” 8 (U.N.Publ.No. 62.1.9, 2d ed.). See also-*320the Court’s opinion in Mendoza-Martinez, supra, 372 U.S. at 160-161,8 83 S.Ct. at 563-564. The accepted idea in our nation in the 19th Century that a person may flee one country and cleave to another — if he chooses — is a long way from the notion that a citizen who leaves this country to take up for a term of years residence in a country with which he has had past association has thereby (a) manifested an intention to assume another nationality, or (b) indicated a desire to be rid of the responsibilities of American citizenship, or (c) assumed a status so awkward for the United States Government that his intentions are not relevant and national policy requires the general severance of the ties of citizenship of all those coming within the category described in Section 352 (a) (1). The first two alternatives are obviously arbitrary in the absence of a determination on a case by case basis, and the third, which more nearly represents the position of the Government, would seem to call for justification under the foreign relations power by some more urgent public necessity than substituting administrative convenience for the individual right of which the citizen is deprived.
In the end, however, the basis for my dissent is that the statute is violative of due process of law in that it unfairly discriminates against the naturalized citizen. Due process requires the “equal protection of the laws,” terms appearing in the Fourteenth Amendment applicable to the states, but applicable also to the Federal Government by reason of the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). The provision for termination of the nationality of a naturalized citizen because of three years continuous residence in the territory of a foreign state of which he was formerly a national, or in which his birthplace is situated, cannot apply to a native-born citizen. By definition the latter does not acquire his citizenship by naturalization. The inequality in treatment is apparent. The statute as applied to plaintiff imposes upon her the serious consequence of loss of nationality due to foreign residence whereas a national born on American soil may reside abroad indefinitely, and for any reason, without such loss.9
The Constitution, however, does not require the law to treat all persons alike. Differences due to reasonable classifications may be valid. This has been recognized with respect to age, sex, occupation, and other factors. The question remains, however, whether this principle can justify taking away the nationality of one national for reasons not made applicable to another national, and, if so, whether the basis asserted for doing so justifies such a severe inequality imposed by law.
The present classification is not based on voting in a foreign political election, as in Perez, or on taking an oath of allegiance to a foreign state, as in Savorgnan. It is based on place of birth and residence. The inequality in treatment arises after American nationality has been conferred. This is contrary to the general policy of our laws to maintain equality in the status of citizens. A difference which antedates naturalization may not readily be revived after citizenship is acquired and by such revival create a more vulnerable type of citizenship than is possessed by the native-born. Whatever exceptions might be recognized the decided trend of law is to consider the naturalized citizen like the native-born. There is the exception that the President must be native-born *321because in this respect the Constitution adopted at the beginning of the Republic so provides.
Let us assume, however, that Congress has authority to draw distinctions between the native-born and the naturalized and to classify for some difference in treatment the naturalized citizen who leaves the United States to live in the country of his birth. Let us assume, in other words, that there is a reasonable basis for Congress to conclude that such a person is more likely than the native-born to embarrass the United States in the conduct of foreign affairs, though both live in the same foreign state for the same length of time and one bears no greater allegiance to the United States than the other. Whether a law under which only the naturalized national entirely loses his nationality by such residence is consistent with due process of law requires a decision whether the adoption of such severe inequality of treatment as a means to the end sought by Congress in decreeing it is reasonable in a legal sense when all its consequences are considered. See Mr. Justice Stewart’s dissent in Mendoza-Martinez, in which Mr. Justice White concurred, 372 U.S. at 214, 83 S.Ct. at 591, where it is said in reference to Trop that it was there emphasized “that the harshness of denationalization for conduct so potentially equivocal was 'an important consideration where the asserted power to expatriate has only a slight or tenous relationship to the granted power’ ” quoting the concurring opinion of Mr. Justice Brennan in Trop, 356 U.S. at 110, 78 S.Ct. at 603.
As to the harshness of the deprivation and its consequent inequality we need not dwell upon the many references in Supreme Court opinions to the preciousness of American nationality, and the cruel and unusual character of a law which terminates it. Moreover, in the present case, there is a complete absence of conduct hurtful to the United States in plaintiff living with her husband at the place of his work and residence in a foreign state.10 That the place is also in the state of her birth is fortuitous. She did not seek to live there, but rather as a young American she met and married a man who makes his living there. She is not a draft evader or a deserter or one who votes in a foreign political election or swears allegiance to a foreign state. Yet she is put to the choice of abandoning either her husband or her nationality. No comparable choice is required of a national bom on American soil who lives abroad in like circumstances.
It is not suggested that she has been a source of embarrassment in the conduct of our foreign affairs; the statute covers her situation because it applies across the board, as it were, to all foreign born. On the other hand a national born in America may safely carry his nationality abroad without fear of losing it even if his presence proves diplomatically embarrassing in the extreme — provided of course he does not engage in conduct specifically proscribed, such as voting in a foreign political election.11 A total loss of nationality occurs in the case of one with no deprivation at all in the case of the other. An inequality of treatment of so severe a character, made on an uncertain basis for any actual difference in the effect of residence of one in comparison with residence of the other on the conduct of foreign affairs, does not meet the test of reasonableness in the means adopted for accomplishing the legislative purpose. A reasonable classification for *322some purposes does not justify the law in imposing an inequality among citizens out of proportion to the purpose for which the classification is made. See, again, Trop, 356 U.S. at 110 and 114, 78 S.Ct. at 603 and 605 (concurring opinion), and our reference above to the dissenting opinion of Mr. Justice Stewart in Mendoza-Martinez. Though I assume denationalization in plaintiff’s case possibly would tend to avoid some possible embarrassment in the conduct of foreign affairs it is not shown that the embarrassment would be either certain or substantial, and in any event the assumption that denationalization avoids some embarrassment incident to residence abroad applies to the native-born as well as to the naturalized national.12 See Worthy v. Herter, 106 U.S.App.D.C. 153, 270 F.2d 905 (1959), cert. denied, 361 U.S. 918, 80 S.Ct. 255, 4 L.Ed.2d 186 (1959). The difference in degree of embarrassment, if any, is not shown to be substantial enough to warrant so great a difference in the consequence meted out only to the naturalized citizen. Constitutional power should not be over-extended so as to deprive plaintiff of a fundamental liberty upon so tenuous a basis.
Perhaps the matter can be stated more simply. The Supreme Court has held in the case of a convicted deserter that denationalization is a punishment so cruel and unusual as to violate the Eighth Amendment. The Court has also held in the case of one who leaves and remains outside the jurisdiction of the United States in time of war for the purpose of evading military service that denationalization is a punishment which, if to be upheld at all, must be accompanied by the safeguards of procedural due process of law. It would seem necessarily to follow from these decisions that in the case of the plaintiff denationalization, which is just as severe as in the two cases referred to, would create such a serious inequality among Americans upon so tenuous a basis that it fails the test of reasonableness which substantive due process requires of all legislation, especially that which restricts the liberty of the citizen.13 What is cruel and unusual under the Eighth Amendment for the deserter a fortiori is unreasonable in its solitary application to a naturalized citizen under the Due Process Clause of the Fifth Amendment. Indeed, were there no Eight Amendment it is probable the conclusion reached in Trop and Mendoza-Martinez would rest equally well upon the Due Process Clause alone.
I would grant plaintiff’s motion for summary judgment.
. This Section provides that a person who is a national of the United States, whether by birth or nationality, shall lose Ms nationality by,
“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 * *
now embodied in the 1952 Act as GO Stat. 267, 8 U.S.O. § 1481(a) (8).
. Mr. Justice Whittaker, dissenting from the result reached in Perez, did not reach the constitutional question in that ease.
. In his dissenting opinion in Mendoza-Martinez, in which Mr. Justice White joined, Mr. Justice Stewart stated: “This Court has never held that Congress’ power to expatriate may be used unsparingly in every area in which it has general power to act. Our previous decisions upholding involuntary denationalization all involved conduct inconsistent with undiluted allegiance to this country.” 372 U. S. at 214, 83 S.Ct. at 591. And it cannot fairly be said that the present case is of that character. In this connection it is of some significance that plaintiff is not a dual national.
. It seems fairly clear from the discussion centering upon the 13 illustrative cases cited in support of Section 352(a) when it came before Congress in 1938, that what was sought to be avoided was the necessity in each case to decide — either administratively or judicially' — whether an individual had abandoned his American citizenship by continued residence in the land of his birth or prior nationality. These illustrative cases do not disclose what disputes arose, if any, between the Government of the United States and the foreign governments in connection with the various individual claims for passports, registration, or presentation of claims. Rather the fact merely of foreign residence for various periods and under such circumstances as were said to indicate no present intention to resume United States residence seems to be the embarrassing element in these cases. See Nationality Laws of the United States, House Committee Print, Part I, pp. 72-76 (1938).
. See note 4, supra. The problem seems to have been one of the Government’s unwillingness to process legitimate claims of a citizen like presentation of a- claim against the host state or issuance of a passport. In some of the eases cited the person involved had served in a foreign army, but this is separately dealt with under the 1940 legislation. Furthermore questions of re-naturalization by another state were present, sometimes with an indication that it may have been involuntarily imposed. In this connection the statement of Secretary of State Bayard, in regard to such a situation vis-a-vis Mexico in 1886, should be recalled:
. See Mendoza-Martinez, supra, 372 U.S. at 16S, 8.3 S.Ct. at 567, where some of the indicia of legislative punishment are discussed. Punishment is judicially regarded as the sine qua non of a bill of attainder. See United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946). And the element of past conduct, or an ex post facto flavor, if it bo required, may be lacking for a determination that this Act constitutes such a bill. However that may be, the quality of punishment insofar as the due process of the Fifth Amendment and the rights guaranteed by the Sixth Amendment are concerned, is not entirely absent here.
. “In the early days of the country, the United States was the international champion of every individual’s right to expatriate himself. In 1868, Congress declared by statute that the right of expatriation is a natural and inherent right of all people. We were then welcoming and seeking immigrants from the Old World and the refusal of European rulers to recognize American naturalization of its former subjects was a matter of concern to us.
“But although the United States recognized and espoused the inherent right of all persons to expatriate themselves, our own laws were silent as to what actions by our citizenry would result in voluntary expatriation or involuntary forfeiture of citizenship. The courts and administrative officers solved such issues as they arose. In 1907, Congress declared that any American citizen shall be deemed to have expatriated himself when he has been naturalized in a foreign state or has taken an oath of allegiance to any foreign state. Except for statutes providing for loss of the rights of citizenship in time of war by deserters or draft evaders, the law remained unchanged until the enactment of the Nationality Act of 1940.”
“Whom We Shall Admit,” supra, at 242. The President’s Commission in conclusion recommended that only a presumption of' loss of citizenship should be created by a three year residence in the land of one’s, birth. Id. at 240. Interestingly enough the courts under the 1907 statute took the view that the presumption related to-loss of diplomatic protection and not citizenship itself, a view which has been credited to Attorney General Wiekersham in an opinion of 1910. Nationality Laws-of the United States, supra, at 70.
. Earlier legislation seems to reflect these principles. See note 7, supra.
. We note the special demand made on a person who acquires a dual nationality at birth — by place of birth or by parentage — and who after age 22 resides in the state other than the United States for three years. Under certain conditions he must take an oath of allegiance to the United States during the period of three years. 8 U.S.C. § 1482. Cf. Mandoli v. Acheson, 344 U.S. 133, 73 S.Ct. 135, 97 L.Ed. 146 (1952).
. In this regard the majority opinion seems to take a different view: “But these sentiments [of wishing to remain an American], however sincere, were not conducive to her retention of residence in the United States.” But Congress has not indicated in the legislation under consideration that its purpose was to keep Americans at home, but rather to promote the smooth working of our foreign relations. Furthermore, we must not confuse the problem in this case with the problem of fraudulent acquisition of citizenship, separately dealt with under the 1940 legislation.
. But see note 9, supra.
. See notes 4 and 5, supra.
. We are not concerned here with the greater latitude by which the reasonableness of legislation concerning economic problems is to be judged, but with the stricter test applicable to a deprivation of personal liberty.