Posted on 02/05/2016 8:22:26 PM PST by kathsua
“How far can Congress go ‘full jus sanguinis’ without redefining the term NBC?”
Under the Constitution, Congress has authority to define who is a citizen at birth and who is foreign. Is Congress always wise in how it uses its power? No.
I think, under original intent, Congress considered citizenship to be conferred naturally from parent to child at birth.
I think, under the 14th amendment, it appears Congress intended to also confer citizenship naturally by place of birth (within the US). However, their intent is not 100% clear.
“Where do you find the authority for the limits of NBC, if there is one?”
No one disputes that a child born on US soil, to two parents who are both US citizens at the time is a natural born citizen. Congress can not make someone born on foreign soil to two foreign parents a natural born citizen. I do not think Congress had the Constitutional authority prior to the 14th amendment to make children born in the US to two foreign parents a natural born citizen. The 14th amendment is what introduced Jus soli (though the term is absent).
The Jus soli legal theory derives from British common law rather than natural law. I do not think that was the founders’ intent as evidenced by 1790.
Again, what Congress can do and should do are two different things.
If the conditions of 1409 are met, the child is under 1401 as per the following
a): The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of this title, shall apply as of the date of birth to a person born out of wedlock if— If not, and if the child’s mother is not a citizen, the child born off soil
So, In the case of this exception to 1401, in cases of unwed parents, The father must meet the requirmeents outlined in 1409 and the child will be considered as having met the requirements of 1401 g) IF not, the child will have to be naturalized if a parent wishes for the child to be a naturalized citizen,
(b) Except as otherwise provided in section 405 of this Act, the provisions of section 1401(g) of this title shall apply to a child born out of wedlock on or after January 13, 1941, and before December 24, 1952, as of the date of birth, if the paternity of such child is established at any time while such child is under the age of twenty-one years by legitimation.
If the unwed father isn’t a national, the mother isn’t a citizen, and the father hasn’t met the requirements under 1409, he will have to go through a process before the child can become a naturalized citizen is how I read 1409- IF the mother is a citizen, I listed the rule already- the child shall be considered just sanguinis citizen per 1401 g)
Like I said in last post- We’re getting bogged down here- If you don’t mind, I would like to see how your conversation with unlearned works out the issues you both are bringing up which are important issue I believe which will shed further light on our conversation- You brought up a good point about an Alaskan being ‘granted NBC by congressional act’ That is a line I hadn’t considered before- and I think might possibly weigh heavily into the issue-
sorry- I meant ‘with unlearner’ - I meant no disrespect unlearner- was a typo on my part-
“your answer does not directly say whether Cruz was naturalized”
No. He was a citizen at birth. The citizenship was naturally conferred from his mother in accordance with the 1952 act applicable at the time.
“Congress can make and eliminate NBC’s by statute?”
They cannot. See my previous post. Please quit splitting your answers into multiple posts. They grow exponentially when you do that. It makes it impossible for others to follow the discussion.
“a US citizen mother married to an alien father could not produce a US citizen on birth abroad, the 1790 act did not make those children citizens”
No. And again, that law was not in effect for Cruz. That law simply demonstrates that the founders considered the issue within the purview of Congress.
“Vattel didn’t disappear in that interim, only to suddenly reappear in 1934.”
I have already explained this. But I will again in case I was not clear. Vattel did mention “parents” in the plural. But he also specified paternal citizenship being conveyed naturally. Vattel did not change, but the Constitution did. Women can now vote, own property, and hold office. This change occurred at the Constitutional level. So it is reasonable to assume that citizenship of BOTH parents can play a role in conferring natural born citizenship. The 1952 act allows such.
“I take that as you being unwilling to support your point of view with authority.”
Of the courts? Every person who has argued with me over the 1790 act loves to cite courts and other writings and laws that happened much later. I have referenced courts occasionally, but my position is that unless a satisfactory answer to the 1790 act has been made, then all the court rulings in the world do not outweigh the actual founders in their intent. So I do not wish to go down that rabbit trail. It is not because of the “authority” but because of relevancy.
“It is also telling that you won’t give a direct answer to ‘where do you find jus sanguinis in the constitution?’”
I NEVER argued that it was in the Constitution. I explained why I believe the law in 1790 supports that the founders views citizenship to be conferred naturally according to the citizenship of the parents just like Vattel said.
“I’m held to produce authority for my propositions, and yours are correct just because you say so.”
I think the founders’ enacting a naturalization act 18 months after ratifying the Constitution is fairly strong authority.
“every reasonable person will go with the case law”
Case law is significant but not more significant than the founders’ intent which plainly was that natural born citizenship is within the purview of Congress in certain cases.
So, you see no constitutional impediment to pure jus sanguinis. Starting with a number of US citizens who move abroad, their children are NBC by jus sanguinis (current law), and if the naturalization act was amended to remove the US residency requirement of the citizen parent, the US could have an enclave of NBC's anywhere in the world, without ever living in the US. Unwise, but constitutional. You haven't identified any limit to this, not in natural law, not in Vattel (it's in there though, I see it), not in the constitution.
-- The 14th amendment is what introduced Jus soli --
The Art IV sec. 2 phrase "citizens of the several states" isn't a jus soli principle?
I know you see this as some sort of imposition, but could you please say, in just a few words (takes less than 20 characters), where you find jus sanguinis in the US constitution?
If Cruz ever makes it onto the Supreme Court (let it be Dear God), the 9th Circus will have every one of their stupid decisions reversed!
1409 has only to do with a child of a foreign mother, who resides with a father- they are the ones who must apply after birth- at birth and by birth do not-The closest I come to finding a response is this:
If the unwed father isn't a national, the mother isn't a citizen, and the father hasn't met the requirements under 1409, he will have to go through a process before the child can become a naturalized citizen
Which is even more confusing. If the father isn't a national, and the mother isn't a citizen, and the child is born abroad, the child is pure alien, no connection the US by blood or by soil.
Further, 8 USC 1409 has multiple sets of requirements. Which requirements do you have in mind? Don't blockquote the language, just say (a)(1-3) or (a)(4)(A-C), or whatever group of requirements. Maybe you mean all of them, which is (a)(1-4)
Another logically puzzling thing is that you say the father has to "go through a process" if the father hasn't met the requirements, and that if the process has been gone through, and the father hasn't met the requirements, the child can become naturalized.
The logic seems to be that if the father doesn't meet the requirements, he goes through some process, and the child can become a naturalized citizen anyway.
Setting all that confusion aside, maybe we can make some progress. Your reference to "go through a process," is indefinite. Is that the same as "must apply after birth?" If it is the same, what is this process? Don't search for or blockquote a mess of chapter and verse of statute or regulation, just say in a few words, what you think the process is. Does he go to the doctor? (just joking) Does he fill out an application? Does he gather and submit evidence? If he submits evidence, who does he submit it to? That sort of description - my questions aren't meant to be answered literally, they are only meant to illustrate the nature of my confusion. You have some "process" in mind, and if you want me to know what that is, you need to tell me what's in your mind.
But you concede that from the founding until 1934, persons born abroad to a citizen mother and alien father were not NBC, and after 1934 they were. How is that not changing the scope of NBC by statute?
Looking at the rest of your post, my take is that you view the 1790 Naturalization Act in combination with Vattel as the controlling legal authority on the subject; with the 1790 act defining one species of NBC. Any court ruling that finds a person born abroad to one citizen parent to be a naturalized citizen, is in error.
I did not write what you claim. I wrote this ...
In 1958, Congress passed a law that said persons born in Alaska since 1867 were US citizens at birth.
I have repeatedly and expressly rejected the equivalence of "citizen at birth = NBC." Please stop insinuating false claims about my words and my position.
The Alaska example (and Hawaii is similar) was raised in the context of an assertion that NBC could not be conferred retroactively. I pointed to the statute pertinent to Alaska, and asked if my correspondent saw it as an impermissible retroactive grant. My correspondent, like you, draws an equivalence between "citizen-at-birth" and NBC.
Please find "being nominated for President" or "running for President" in the Constitution.
Eligibility to the office of President is a constraint on the Electoral College, and arguably on the Joint Special Session of Congress that counts the electoral votes, or the House of Representatives if it gets that far.
But any person, eligible or not, can "run for President" without creating a legal or Constitutional issue.
[[I have repeatedly and expressly rejected the equivalence of “citizen at birth = NBC.” Please stop insinuating false claims about my words and my position.]]
Sorry- again that was not intentional- I assumed you were making the case that citizen at birth was NBC since that is the common interpretation of citizen ‘at’ birth- I will note that you do not support that interpretation from here on out- I’ve never actually seen you state you reject that equivalence- (not saying you didn’t state that, just that I didn’t see it if you did)
[[I pointed to the statute pertinent to Alaska, and asked if my correspondent saw it as an impermissible retroactive grant.]]
I see that now- I thought you were making the case that is was for the purpose of showing that IF it is allowed ‘by statute’ then it shouldn’t be constitutionally acquired- I misread your intention for asking the question - and as noted, I’ll read your future comments on this issue according to your explanation you gave above- sorry-
Filing a false certification of eligibility is a serious misdemeanor in Iowa. I suspect all states have similar laws on the books, just as a function of protecting ballot integrity. There have been instances of declared candidates being removed from the ballot, by a state agent.
I do agree that there is no federal offense in running while ineligible. Election contests are run by the states, and only in the case of Pres/VP are the ballots (those being ballots of electors, not of voters) counted by an arm of the federal government.
[[The logic seems to be that if the father doesn’t meet the requirements, he goes through some process, and the child can become a naturalized citizen anyway.]]
No that’s not what I meant to say-
it appears that for the child of an unwed father who IS a citizen, it appears they would have to establish parenthood through the court, or to agree to provide financial support until child is 18- IF paternity is established through a process of court before child is 21, then the 1401 g) applies it appears according to 1409 b)
(b) Except as otherwise provided in section 405 of this Act, the provisions of section 1401(g) of this title shall apply to a child born out of wedlock on or after January 13, 1941, and before December 24, 1952, as of the date of birth, if the paternity of such child is established at any time while such child is under the age of twenty-one years by legitimation.
[[Does he gather and submit evidence?]]
It appears from 1409 he has to in order to prove he is the father according to the following (IF he didn’t meet previously stated requirements in 1409)
[[(B) the father acknowledges paternity of the person in writing under oath, or
(C) the paternity of the person is established by adjudication of a competent court. ]]
A somewhat confusing issue comes in when describing an unwed father who is a national (and mother is not a citizen or national)- I presume the child would be a national- but 1401 deals with both nationals and citizenship
I’m not sure exactly what you are driving at- which is why I wanted to wait and see how your discussion with unlearner hashes out the issues- perhaps I’m just not seeing the relevance of your contention that the CRS report is invalid because it didn’t mention the exception to 1401 (which is 1409)- and I don’t see how 1409 even invalidates the conclusion of CRS report and the justices’ opinions in the Nguyen case that indicated that the case showed a difference between NBC and the need for naturalization
There’s been a miscommunication on your part OR a misunderstanding on my part- probably the latter-
Not to confuse the issue further, but another point needs to be made regarding the Bellei case- Bellei was found to have ‘forfeited his citizenship’ for not meeting requirements based on an act that appears to have been repealed- (1972 I believe I read?)- the supreme court ruled on that case based on that specific act, and it appears that since the act is no longer in effect, may not come to the same conclusion they did today as they did then should a case with the same circumstances come up again- I may be wrong on this- as I haven’t looked into the issue too much- but it appears the act has been repealed?
I'm driving at understanding what is in your head, when you say ...
1409 has only to do with a child of a foreign mother, who resides with a father- they are the ones who must apply after birth- at birth and by birth do not-
So far, all I have in the way of understanding what is in your head, I think, is that for a child born out of wedlock, to a US citizen father, the father has to prove certain things to some "US citizenship authority." The identification of this "US citizenship authority is not an issue. It is either the state Department, Immigration and Naturalization, a Consular Office, or a Court.
I don't know if the father having to prove certain things to some US citizenship authority is what you meant by "apply after birth" or your later "go through a process."
Referring to your mysterious statement blockquoted above, I also don't know, not even by way of a single example, who you think is in the group of "at birth and by birth do not." One reason this is confusing to me is that for the "father has to prove certain things" case, the citizenship is still "at birth." In both 1401 and 1409, the person is a citizen at birth if certain things are proved. The "certain things" vary with circumstances of birth, but all of those Acts of Congress require "certain things" be proved as a condition of finding citizenship.
Nothing below this line is pertinent to the discussion.
The material below this line is addressing extraneous issues that you brought up.
I didn't say what you claim there. You seem to have a chronic practice of making mistakes, many of them pivotal to the discussion.
I said the CRS report is misleading, not because of any exceptions to 1401, but rather on the fundamental point in the Nguyen case that any "equivalence" between birth abroad and birth on the soil exists solely on account of a statute. Making things "equivalent" by statute does not turn one thing (birth abroad) into another (birth in the US), except by creating a legal equivalence or legal fiction. The equivalence DEPENDS ON THE STATUTE. This is a simple concept that you fail to acknowledge, even though it has been expressed to you several times.
Expounding on that by way of example, there is a Social Security regulation that says a 21 year old shall be considered to be a child. For Social Security purposes, a 21 year old is a child. If the regulation is taken away, a 21 year old is an adult - the "equivalence" (legal fiction) disappears.
-- [referring to the Bellei case] and it appears that since the act is no longer in effect, may not come to the same conclusion they did today as they did then should a case with the same circumstances come up again --
A case with the same circumstances can't come up for a person born after 1978 or so. The issue was stripping of citizenship for failure to meet the conditions subsequent to birth (in Bellei's case, 5 years of US residence or presence before the age of 21). Citizenship retention conditions were amended by Pub. L. 92-584 (1972), and then removed by Pub. L. 95-432 (1978).
If a case with the same circumstances came up again (citizenship under a statute that includes citizenship retention requirements; and the citizenship retention requirements are not met), the authorities would simply apply the rule established in the Bellei case. The issue is decided, stare decisis, courts simply point at the case, and say "follow it."
A basic point that you fail to acknowledge is that the very existence of the Bellei case depends on Bellei being a naturalized citizen. No Act of Congress can strip citizenship from a citizen who is not naturalized.
“if the naturalization act was amended to remove the US residency requirement of the citizen parent, the US could have an enclave of NBC’s anywhere in the world”
Or we could have millions of citizens who have never lived in the US including grand children and great grand children. Like I said, Congress has the power. Whether they use the power wisely or not is another issue.
“The Art IV sec. 2 phrase ‘citizens of the several states’ isn’t a jus soli principle?”
Not at all. At the time of ratifying the Constitution, states had the ability to determine who were its citizens and how foreigners (including citizens of other states) could naturalize.
“I know you see this as some sort of imposition, but could you please say, in just a few words (takes less than 20 characters), where you find jus sanguinis in the US constitution?”
How many times do I have to answer this? You asked it four. I answered it twice already. So here is a third time.
You and I both know that this Latin phrase is not in the Constitution, AND I never claimed it was. There is nothing in the Constitution itself that specifies how citizenship is “naturally” conferred at birth. However, the first act of Congress gives extremely strong credibility that the founders’ intent was citizenship being naturally conferred on the basis of jus sanguinis (i.e. right of blood). Citizenship was not conferred at birth merely on the basis of jus soli (i.e. right of soil). So, for example, if black slaves or American Indians had children on US soil, those children would not be citizens at birth ordinarily.
“But you concede that from the founding until 1934, persons born abroad to a citizen mother and alien father were not NBC, and after 1934 they were. How is that not changing the scope of NBC by statute?”
If Congress had not passed the naturalization act of 1790, children born abroad to US citizens would not definitively be natural born citizens. At the time it would have depended on which state the father was a citizen of. The uniform rule of naturalization power of Congress gives Congress the power to determine who is a citizen at birth and who must naturalize in order to become a citizen.
Same as my first comment to you, and you still seem to have trouble just grasping the meaning of those words. You seem to speak English just fine, so I think it is a mental block caused by putting a 100% of your mental effort into proving something you are completely unwilling to reconsider. It is an axiom for you. An a priori assumption. I can’t help you with that.
I have already said what will make me reconsider my position. And I am truly open. If anyone can prove that there were founders who strongly opposed the first naturalization act on the grounds that it was unconstitutional, that would merit consideration. I have looked and have not found one single, solitary shred of evidence. Therefore even IF I am wrong, I am in the good company of the founders who (according to my opponents) did not even understand the term when they wrote it into the Constitution. My position falls safely within the realm of original intent. Yours does not. Sorry. That is just how it is.
[[A basic point that you fail to acknowledge is that the very existence of the Bellei case depends on Bellei being a naturalized citizen.]]
Based only on the now repealed act- the act, according to the SC as I understand it was what they used to determine he was naturalized and not NBC
[[Referring to your mysterious statement blockquoted above, I also don’t know, not even by way of a single example, who you think is in the group of “at birth and by birth do not.”]]
I’ve explained my position on this many times- Any ‘common law/natural law’ (as well as ‘law of nations’ thrown into the mix) results in at birth and by birth Citizenship either by being born on soil, or by descent
to make htings a little more confusing, there sems to be an issue where a national’s child is automatically a national ‘at birth’ as well
[[a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth,]]
[[In both 1401 and 1409, the person is a citizen at birth if certain things are proved.]]
1401 regarding citizens doesn’t have to prove anything unless, as the exception 1409 states, the parents are unwed- the fact that they don’t have to prove anything, seems to mean citizenship is automatically descended to the child if the mother or father is a citizen-
[[The “certain things” vary with circumstances of birth, but all of those Acts of Congress require “certain things” be proved as a condition of finding citizenship]]
‘making it a statute’ - and your argument seems ot be- and correct me if I’m wrong, that statutes always invalidate a person from being president because the statute means they can’t be an NBC, and that they are instead naturalized- however, the court In the Nguyen case seemed to recognize a difference in special circumstances such as unwed parents, and recognized dual categories of ‘after birth’ naturalization vs citizenship minus any ‘after birth’ actions - In the Nguyen case, it was determined that a lack of ‘after birth’ actions by the father rendered the situation one of a naturalization process- Further, those who suggest that congress ‘can’t pass law regulating what natural born citizenship means’ forget that the 1790 act did just that, passed law determining what NBC was- so it seems plausible that all law passed by congress regarding citizenship doesn’t automatically make it an act which must confer citizenship via naturalization
The Nguyen case opinions of the justices showed that there is a difference in ‘at birth’ citizenship, and ‘after birth citizenship’ which ‘must have requirements fulfilled, and this would ‘seem to indicate’ that citizenship can indeed be stripped from a person in special circumstances (such as a father not meeting requirements, or a person who commits treason)-
A fundamental difference between our approaches to this issue is that I am willing to consult case law on the subject, and you are not. Case law even addresses the effect of the 1790 statute. At any rate, what you are railing against is not an axiom of mine, or an a priori assumption of mine. You are railing against the case law.
Does any case law specifically rule that a specific person was not a natural born citizen? I am unfamiliar with such a ruling.
By your logic, the only time any proof is required is when the parents are unwed. So, if a couple simply claims to be married, poof, no proof of anything is required! Cool. But false.
Your claim that the parents of a child born abroad, in wedlock, don't have to prove anything, that claim is false. Refer to 8 USC 1401(g) to see the requirements. In order to demonstrate that the child comes within 8 USC 1401, certain facts need to be proved.
The parents have to prove that they are the parents. Being blood parents is not something that is self-evident. The blood parents have to prove that one of them is a US citizen. US citizenship is not something that is self-evident. The US citizen parent has to prove he or she meets the physical presence requirement. Physical presence for a period of time in the past is not something that is self-evident. While unstated in 1401, there is a wedlock requirement. The reason there is a wedlock requirement is that if the birth is out of wedlock, then the correct statute is 1409, not 1401. Birth in wedlock to the persons claiming to be the blood parents of the child is not something that is self-evident.
That all of those facts need to be proved is evident not only on review of the naturalization statutes, it is also evident on the paperwork the parents must complete to get a certificate stating their child meets the requirements of the law that establishes US citizenship. That these facts need to be proved is also evident in 7 FAM 1131 parts of the State Department manual that I linked for you at post 268 of this thread.
Are you willing to retreat from your position "they don't have to prove anything" is a fact? Or is you position firm, that "they don't have to prove anything" is a fact?
Nothing below this line is pertinent to the discussion.
The material below this line is addressing extraneous issues that you brought up.
Well, "as you understand it" is the root of the problem. I have explained it to you in two or three different ways, and you don't get it. Your mind is weak on "logic." Not that there is anything wrong with that.
Dealing with the citizenship retention aspect of the law, Bellei was a citizen before the retention requirements expired.
At Bellei's birth, he was a citizen by operation of a statute. He remained a citizen until the period for meeting the retention requirement expired.
If Bellei had met the citizen retention requirement, he would be a citizen today. If he was a citizen today, he would have no reason to sue to get his citizenship back, because he would still have his citizenship.
But Bellei was a citizen when he was born. Where did Bellei get his citizenship from? Bellei got his citizenship from operation of an Act of Congress.
Assuming that Congress cannot take citizenship away from the president (who must be natural born), and noticing that Bellei was stripped of his citizenship by the same Act of Congress that gave him his citizenship, it follows that Bellei cannot have been natural born.
Both Bellei and Cruz obtained their citizenship from an Act of Congress. Between the time Bellei was born and the time Cruz was born, the relevant Act of Congress was changed regarding US residency of the citizen parent, and citizenship retention requirements to the child.
The changes to the US residency of the citizen parent requirement have no bearing on the nature of citizenship of Bellei and Cruz, because the mother of Bellei met the US residency requirements in effect when Bellei was born, and the mother of Cruz met the US residency requirements in effect when Cruz was born.
The changes to citizenship retention requirements have no bearing on the analysis, beyond acknowledging the fact that failing to meet the citizenship retention requirements led to the reason Bellei sued. Citizenship retention requirements have no effect on the source of citizenship in the first place.
In both Bellei and Cruz cases, the source of citizenship is the same Act of Congress, amended in form (clause numbers changed), amended as to US residency of the citizen parent, and amended in citizenship retention.
Then there is the rule of law stated several times, in different ways, by both the majority and the dissent, in the Bellei case ...
Congress is empowered by the Constitution to 'establish an uniform Rule of Naturalization,' Art. I, S: 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen.
That rule of law is not about a citizenship retention requirement. It is a rule of law about the source of citizenship.
-- and your argument seems ot be- and correct me if I'm wrong, that statutes always invalidate a person from being president because the statute means they can't be an NBC, --
It is not only my argument. What I am doing is pointing to case law, citing it, as they say, for certain propositions. What you are rejecting is the case law.
Congress is empowered by the Constitution to 'establish an uniform Rule of Naturalization,' Art. I, S: 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen.
-- Further, those who suggest that congress `can't pass law regulating what natural born citizenship means' forget that the 1790 act did just that, passed law determining what NBC was --
Case law views that statute as a naturalization statute, despite the fact that it contains the phrase "natural born citizen."
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.