Constitution Daily

Smart conversation from the National Constitution Center

A royal and constitutional citizenship question

May 17, 2018 by Scott Bomboy

 

On Saturday, Prince Harry and Meghan Markle will exchange wedding vows at Windsor Castle. So what happens to the American citizenship status of newest member of Britain’s royal family?

In legal and constitutional terms, Meghan Markle is a natural-born United States citizen. (Markle, 36, was born in Los Angeles.) Currently, she would have the expected rights of an American citizen. She can vote in elections, and she could run for political office, including as a candidate in elections for the House, Senate, or even the President, because of her age and her recent residence in the United States.

Does that change the moment after the couple is legally married in Britain? According to reports from there, it could take Markle at least another five years to gain full status as a British citizen. Until then, Markle will remain in Britain on a visa she applied for last month in Chicago, and then on a different visa status after the wedding. And she’ll likely remain an American citizen, albeit one living outside of the country, during that period.

The big decision Markle faces is about retaining her American citizenship after gaining her British citizenship. The concept of dual citizenship or dual nationality is problematic for the new royal couple in several ways.

Last November, the Washington Post looked at Markle’s potential tax issues as an American living overseas. The new Duchess would remain an American tax payer as long as she is a citizen, regardless of her physical location. Temple University’s Peter Spiro told the Post that Markle doesn’t get a pass due to her royal status. “U.S. citizens are subject to U.S. tax obligations regardless of their country of residence … A member of the royal family would be treated just like anyone else," Spiro said. Markle could be forced to report some of her marital income at certain levels to the IRS, the Post said – an issue that royal accountants are fully aware of.

Another question is the citizenship status of any royal children born while Markle remains an American citizen over that five-year period. Under current laws, they would become American citizens since one parent (Markle) was a citizen at the time of their birth. At the age of 18, the children could drop their American citizenship to avoid a conflict of interest with their royal status (or to avoid an IRS headache). For example, Prince Albert of Monaco gave up his American citizenship when he became an adult, as did the former Lisa Halaby when she became Jordan's Queer Noor.

Retaining dual nationality has other risks aside from dealing with the IRS. The State Department, in its official guidance to dual nationals, warns that such citizens need to keep in mind some basic problems. “Dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries, and either country has the right to enforce its laws,” it says. “Claims of other countries upon U.S. dual-nationals often place them in situations where their obligations to one country are in conflict with the laws of the other. In addition, their dual nationality may hamper efforts of the U.S. Government to provide consular protection to them when they are abroad, especially when they are in the country of their second nationality.”

To be sure, Markle wouldn’t be your typical dual national citizen and consular protection wouldn’t be an issue for her. But once Markle or her potential children dropped their American citizenship, it would be very difficult to gain it back though the United States’ naturalization process. "If she did, it would be for keeps," Temple’s Spiro told the Post. "Those who renounce are treated as if they never had citizenship. To get it back, she would have to go through the ordinary naturalization process." 

Would Markle’s new royal title have any effect on her American citizenship? The Constitution’s Article 1, Section 9, and Article 1, Section 10 only apply to the ability of Congress and the states to grant their own noble titles. However, there is a long-ago proposed constitutional amendment, still eligible for ratification, that would strip American citizenship from a citizen who accepted a royal title.

In any event, there are few circumstances where Markle would lose her American citizenship against her will. INA Act 349 spells out that acts of treason, seditious conspiracy, or advocating the violent overthrow of the government would cause an expatriation of citizenship on conviction. Also, if Markle served in the British armed forces as an officer or joined the armed forces of a nation engaged in hostilities against the United States, that could trigger an expatriation process.

Back in 1967, the Supreme Court ruled in Afroyim v. Rusk that an American citizen can only be expatriated after committing a voluntary act that showed an intent to renounce her or his citizenship. “We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship,” said Justice Hugo Black.

And as a footnote, if Markle wanted to regain her American citizenship after renouncing it, there is a “royal” precedent. In the 1960s, one of Hollywood’s royalty, Elizabeth Taylor, renounced her American citizenship during her first marriage to Richard Burton. Taylor had been born in London, England, to American parents and was a dual national. A decade later, she regained her United States citizenship during her marriage to John Warner.

Scott Bomboy is the editor in chief of the National Constitution Center.

 

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