Fifty years ago, in the landmark decision Afroyim v. Rusk,1 the Supreme Court enshrined a fundamental guarantee: the government cannot involuntarily strip native-born U.S. citizens of citizenship.2 Naturalized citizens are similarly protected, with an essential exception: if they procured citizenship “contrary to law.”3 Courts have grappled with delineating the precise contours of that window for denaturalization. For instance, when the predicate crime is a false statement to immigration officials,4 the circuit courts had split on the question of whether the false statement must be material to the granting of citizenship.5 Last Term, in Maslenjak v. United States,6 the Supreme Court resolved that circuit split, holding that if the underlying illegal act is a false statement to government officials, the government must show that the falsehood influenced the decision to grant citizenship.7 The outcome in Maslenjak echoes that of two recent statutory interpretation cases in which overcriminalization concerns drove the Court to reject broad government readings of criminal statutes: Bond v. United States8 and Yates v. United States.9 However, while Bond and Yates were borne of outlandish prosecutions characterized by the use of statutes whose primary purposes were unrelated to the defendants’ conduct, the Maslenjak statute raised the specter of a different kind of mismatch: one between the gravity of the offense and the severity of the consequences, due to mandatory denaturalization upon conviction. By taking up this new aspect of the overcriminalization problem, the Court demonstrated the vitality of its concerns in this realm and underscored the need to articulate a clear approach for interpreting broadly worded criminal statutes.
Divna Maslenjak, an ethnic Serb, lived in Bosnia during its civil war in the 1990s.10 In 1998, she sought refugee status in the United States.11 Maslenjak stated under oath that her family faced persecution from both sides of the war: from Muslims, because of the family’s Serbian ethnicity; and from Serbs, because her husband had fled conscription in the Bosnian Serb Army.12 Based on her testimony, the family was granted refugee status.13 Six years after arriving in the United States, Maslenjak applied for naturalization.14 On the application form, Maslenjak replied “no” under oath to two questions asking whether she had ever lied to government officials during immigration proceedings.15 She affirmed those responses under oath in a subsequent interview.16
However, the government soon found that Maslenjak had in fact made such false statements.17 Immigration officials uncovered records showing that far from evading service, Maslenjak’s husband had been an officer in the Bosnian Serb Army and had served in a brigade involved in massacring approximately 8000 civilian Bosnian Muslims.18 Within a year, he was convicted of making false statements on immigration documents.19 Maslenjak, testifying in an attempt to stop his deportation, admitted that she had been aware of his role in the war.20
In response, the government charged Maslenjak with violating 18 U.S.C. § 1425(a) by “knowingly ‘procur[ing]’” her naturalization “contrary to law.”21 The underlying illegality was making false statements under oath in a naturalization proceeding in violation of 18 U.S.C. § 1015(a) — namely, the answers in her naturalization application and interview assuring her past honesty.22 Despite an objection by Maslenjak, the United States District Court for the Northern District of Ohio instructed the jury that any falsehood, regardless of whether it influenced the decision to grant naturalization, would suffice for a conviction.23 The jury found Maslenjak guilty, and the district court accordingly stripped her of citizenship.24
The Sixth Circuit affirmed, upholding the district court’s jury instructions.25 According to the Sixth Circuit, the plain language of the statute and the overall statutory scheme of denaturalization did not compel a materiality requirement.26 Because making a false statement to immigration officials violated naturalization law, the court reasoned that the making of such a statement automatically constituted procuring citizenship “contrary to law” in violation of § 1425(a), regardless of whether the statement influenced the naturalization outcome.27
The Supreme Court vacated and remanded.28 Writing for the Court, Justice Kagan29 began with a close examination of the statutory text.30 The Court first reasoned that “procur[ing], contrary to law, naturalization”31 meant obtaining citizenship illegally.32 The “most natural” reading of that phrase, in turn, was that “the illegal act must have somehow contributed to the obtaining of citizenship.”33 The government’s contrary reading, that any illegality in the course of obtaining citizenship would transgress § 1425(a), did not comport with ordinary use of language — just as it would be unnatural to say that a man “procured [a] painting illegally” if he had happened to violate a traffic law while obtaining it.34
Though the government attempted to distinguish such examples by arguing that the statute’s “contrary to law” language specifically referred to laws “pertaining to naturalization,” the Court rejected the argument, finding this reading unsupported by the statute’s plain text.35 Furthermore, even if such a limitation applied, the “rules of language” would nevertheless compel a causal connection between the illegal act and the award of citizenship.36
Looking more broadly, the Court found that the general statutory context reinforced Maslenjak’s reading of § 1425(a).37 Failing to require causation would create a “profound mismatch”38 between the requirements for naturalization and those for denaturalization, since illegal acts that would not justify a denial of citizenship would justify its revocation.39 This effect, coupled with the fact that many individuals may, for innocuous reasons, fail to be entirely truthful regarding inconsequential matters while navigating the citizenship process, would endow prosecutors with almost unlimited discretion to rescind naturalized citizenship.40 Because finding that Congress intended such severe consequences would require “far stronger textual support” than that provided in the statutory text, § 1425(a) must require a causal relationship between the illegal act and the procurement of citizenship.41
Next, the Court turned to the “more operational” question of how the causation requirement should apply in practice for prosecutions in which a false statement to government officials was the predicate illegal act.42 Adopting an objective approach, the Court articulated the two means by which a false statement could have the required effect on the naturalization decision: first, if the misrepresented facts themselves justified denying citizenship; and second, if the misrepresentation threw investigators off a trail that could have led to disqualifying facts.43 In the first scenario, “an obvious causal link” exists between the falsehood and the granting of citizenship.44 In the second scenario, dubbed the “investigation-based theory,” the government can establish the requisite causal connection with a two-part showing.45 First, the government must show that the misrepresented fact was “sufficiently relevant” to a qualification for citizenship, such that an immigration official seeking evidence about naturalization criteria would have been prompted to engage in further investigation.46 Next, the government must establish that the ensuing investigation “would predictably have disclosed” a dis-qualifying fact.47 Even if the government succeeds in this two-part showing, the defendant can overcome it by demonstrating that she is actually qualified for citizenship.48
Applying this analysis, the Court found error in the district court’s jury instructions.49 Because the instructions stated that no causal link was necessary between Maslenjak’s false statements and the government’s decision to grant her naturalization, the jury did not make any of the required findings regarding causation.50 The Court vacated the judgment of the Sixth Circuit, leaving for resolution on remand the question of whether Maslenjak’s misrepresentations would have affected the decision to grant her citizenship.51
Justice Gorsuch, joined by Justice Thomas, concurred in part and concurred in the judgment.52 He agreed with the Court’s reasoning that the statute’s plain text and structure required the government to establish causation as an element of a conviction under § 1425(a).53 However, Justice Gorsuch argued that the Court should have left to lower courts the task of fleshing out the precise causal relationship required between the illegality and the granting of citizenship.54
Justice Alito concurred in the judgment.55 While the majority viewed the statute’s plain text as containing a causation requirement, Justice Alito eschewed that framing. Instead, he reasoned that when the predicate crime is a false statement, the language of § 1425(a) contains an implied materiality element.56 To be material, the false statement must have a “natural tendency to influence” the outcome of a naturalization decision, with no requirement that the government prove that the falsehood actually affected the outcome.57
In holding that § 1425(a) requires a causal link between false statements and the decision to grant citizenship, the Court, motivated in part by concerns regarding overcriminalization and unbounded prosecutorial discretion,58 rejected a broad argument by the government that any lie told over the course of the naturalization process could be the basis for denaturalization. Maslenjak therefore parallels Bond and Yates, two key statutory interpretation decisions in which the Court, partly due to similar concerns, rejected broad government readings of criminal statutes.59 However, while concerns about prosecutorial discretion and overcriminalization arose in Bond and Yates due to a mismatch between the statute used and the individual prosecuted, the concern in Maslenjak was over a potential incompatibility between the gravity of an offense and the attendant consequences. By considering this variant of the overcriminalization problem, the Justices demonstrated the ongoing robustness of the trend established by Bond and Yates and therefore accentuated the urgency of developing a coherent approach to interpreting statutes that raise overcriminalization and prosecutorial discretion issues.
Concerns regarding overcriminalization and prosecutorial discretion figured prominently at the Maslenjak oral arguments and subsequently animated the opinion. The Justices’ hostility to the government’s position at oral argument garnered widespread press attention60 and evinced deep apprehension regarding the ramifications of the government’s broad statutory reading. Justices Kagan and Sotomayor expressed incredulity at the government’s stance that even seemingly inconsequential lies, like those about one’s weight61 or a childhood nickname,62 could be the basis for denaturalization. Justice Breyer remarked that the government’s reading “would throw into doubt the citizenship of vast percentages of all naturalized citizens.”63 Chief Justice Roberts was even more direct, stating that there was “certainly a problem of prosecutorial abuse” under the government’s reading, since “the government will have the opportunity to denaturalize anyone they want.”64 And Justice Kennedy delivered a withering rebuke, chiding the government lawyer for “demeaning the priceless value of citizenship.”65
Unsurprisingly, these themes resurfaced forcefully in the Court’s opinion. Despite having already decided that the plain text of the statute required a causal link between false statements and the granting of citizenship, Justice Kagan’s opinion for the Court nevertheless lingered on the disastrous consequences of the government’s broad statutory reading.66 The Court criticized the government’s reading of the statute as “open[ing] the door to a world of disquieting consequences.”67 Taking the hypothetical of a woman who, while applying for citizenship, failed to disclose “membership in an online support group or . . . a prior speeding violation,” the Court balked at the prospect that “a prosecutor could scour her paperwork and bring a § 1425(a) charge on that meager basis, even many years after she became a citizen.”68 Permitting such prosecutions “would give prosecutors nearly limitless leverage” — a result the Court could not countenance without an explicit, textual expression of congressional intent.69 Overcriminalization and prosecutorial discretion concerns were thus a key driver propelling the Court toward a seemingly inexorable conclusion: the government’s reading must be rejected.70
In this sense, Maslenjak falls comfortably alongside Bond and Yates into a line of statutory interpretation cases in which the Court, concerned about the ever-expanding criminal code and the attendant shift of power into the hands of prosecutors, has spurned broad government readings of federal criminal statutes. The oral arguments in Bond and Yates paralleled those of Maslenjak in tenor and substance, signaling significant concerns about prosecutorial overreach and indicating that the Justices found the government’s position untenable on that basis.71 And, just as in Maslenjak, the opinions in Bond and Yates referenced those concerns in their reasoning.72 Scholars and commentators have seized upon this thread within Bond and Yates, recognizing both opinions as indicative of the Court’s growing anxiety about these features of criminal law.73 However, Maslenjak did more than merely pick up the thread that winds throughout those cases, because the abuses of prosecutorial discretion that concerned the Justices in Bond and Yates differ subtly from those at issue in Maslenjak.
Unlike Maslenjak, Bond and Yates involved “mismatched” prosecutions under statutes ill suited for the defendants in those cases. In Bond, many took note of the obvious absurdity of the government using an international chemical weapons treaty’s implementation statute to prosecute a woman seeking only to inflict discomfort upon a romantic rival with the aid of relatively quotidian chemicals.74 Similarly, in Yates, there was a palpable incompatibility in using an evidence-shredding provision of the Sarbanes-Oxley Act, a statute designed in the wake of the Enron scandal to address financial fraud, to pursue a fisherman guilty of throwing away undersized fish.75 The Court grappled with this incongruity problem in both opinions, with its reasoning partially driven by the readily apparent prosecutorial overstep inherent in under-taking such mismatched prosecutions.76 Commentators, while recognizing the Court’s growing discomfort with prosecutorial overreach, explicitly tied those anxieties to the mismatched nature of the prosecution at the heart of the cases.77 To be sure, potential high penalties played a role in the Court’s concerns;78 however, the discretion afforded to sentencing judges under those statutes reduced that threat by operating as a check on prosecutorial discretion.79 Ultimately, the Bond and Yates prosecutions were aberrant because they targeted behavior utterly unrelated to the original statute, resulting in problems of notice80 and an overreach of federal jurisdiction due to the creation of overlapping crimes.81
In Maslenjak, the Court once again expressed anxiety about peripheral cases involving prosecutorial abuse; however, the hypothetical cases that provoked concern in Maslenjak were problematic not because of a mismatch between statute and defendant, but rather due to a potential incompatibility between the gravity of an offense and the consequences. Maslenjak, unlike Bond and Yates, involved a straightforward application of a denaturalization statute to the type of person contemplated by that statute.82 Future prosecutions under the statute, rather than looping in wholly unrelated behavior, will likewise involve naturalized citzens accused of immigration-related crimes. However, because a con-viction under § 1425(a) automatically results in denaturalization,83 the Court recognized that a broad reading would allow for a different kind of incongruous prosecution in the future: one in which a minor lie would be met with the drastic punishment of denaturalization, without any opportunity for a mitigating exercise of discretion by the trial judge. By engaging in the logical extension of the Bond/Yates concerns to this type of peripheral prosecution, Maslenjak demonstrates that these anxieties are deeply held and likely to continue to impact the Court’s reasoning.
Consequently, Maslenjak underscores the need for the Court to face head-on the debate about its proper role in addressing the problem of overcriminalization.84 While Justice Kagan’s Yates dissent forcefully disavowed the notion that the Court should take an active role in addressing the issue,85 cases like Maslenjak demonstrate that these same anxieties are nevertheless continuing to arise in the Court’s jurisprudence. If they are operating in the background to affect the Justices’ reasoning, litigants would benefit from a clear, principled articulation of how those concerns impact the Court’s statutory interpretation.
Maslenjak suggests a logical starting point for this endeavor. Given that Justice Kagan relied in part on the mitigating effect of the sentencing judge’s discretion to conclude that the Court need not actively address overcriminalization concerns in Yates,86 statutes like § 1425(a), which cut off that safety valve and instead vest all discretion in the prosecutor, offer fruitful territory for beginning to flesh out a firmer stance on overcriminalization. One option for the Court would be to articulate a new “anti-overcriminalization canon,” wherein ambiguous statutes that provide for no sentencing discretion are construed in a manner that avoids overcriminalization and unchecked discretion problems.87 Another option would be to constitutionalize concerns about overcriminalization by foregrounding the due process problems regarding notice embedded in such cases.88 Regardless of the method chosen, establishing a definitive interpretive approach would impart much-needed clarity and predictability upon the criminal law landscape.