That was a trick question, right? I’m sure that you know that “merits” aren’t heard in (higher) Appellate Courts. They are only heard in original jurisdiction (lower) courts. Appellate courts rule on errors of law or constitutional interpretation and they don’t hold trials.
http://en.wikipedia.org/wiki/Appellate_court
So if any plaintiff challenged Obama’s attorneys’ use of Wong Kim Ark on the grounds that Barack Obama Senior was not permanently domiciled, that would be heard on appeal to higher state or federal courts.
However the ruling in US v. Wong Kim Ark says: “[an alien parent’s] allegiance to the United States is direct and immediate, and, although but local and TEMPORARY, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s case, 7Coke 6a, strong enough to make a natural subject, for, he hath issue here, that issue is a natural born subject.”
The majority decision went on to state that: “’Subject’ and ‘citizen’ are, in a degree, convertible terms as applied to natives; and though the term ‘citizen’ seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, ‘subjects,’ for we are equally bound by allegiance and subjection to the government and the law of the land.”
The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.However, the court's discussion is not to be followed when found to be erroneous. Such judicial dicta is not authoritative.Order affirmed.
The discussion in Ark contains several errors. Here are two.
It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.
This is an error of fact. The same rule did not exist "in the United States afterwards".
After the Declaration of Independence and before the adoption of the Constitution, naturalization was a function of State governments. Delaware, Maryland, South Carolina, and Virginia had specific naturalization laws.
Another difference is in the fact that Connecticut never adopted English common law.
So not only did the same (prior, colonial) rule not apply, the rules were not uniform. Upon the adoption of the Constitution the rule of naturalization was made uniform.
A second error occurs in the discussion of State v. Manuel.
The term "citizen" as understood in our law, is precisely analogous to the term subject in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people - and he who before was a "subject of the king" is now "a citizen of the State."
The US Supreme Court is citing State v. Manuel, an 1838 case before the North Carolina Supreme Court.
The following is the first portion of the paragraph containing the sentence cited:
It has been said that before our Revolution, free persons of colour did not exercise the right of voting for members of the colonial legislature. How this may hvae been, it would be difficult at this time to ascertain. It is certain however that very few, if any, could have claimed the right of suffrage, for a reason of a very different character than the one supposed. The principle of freehold suffrage seems to have been brought over from England with the first colonists, and to have been preserved almost invariably in the colony ever afterwards. In the act of 1743, ch. 1, (Swan's Revisal, 171,) it will be seen that a freehold of fifty acres was necessary to entitle the inhabitant of a county to vote, and by the act of 2d Sept. of 1746, ch. 1, Ibid. 223, the freeholders only of the respective towns of Edenton, Bath, Newbern and Wilmington were declared entitled to vote for members of the Colonial Legislature. The very Congress which framed our constitution, was chosen by freeholders. That constitution extended the elective franchise to every freeman who had arrived at the age of 21, and paid a public tax; and it is a matter of universal notoriety that under it, free persons without regard to colour, claimed and exercised the franchise until it was taken from free men of colour a few years since by our amended constitution. But surely the possession of political power is not essential to constitute a citizen. If it be, then women, minors, and persons who have not paid public taxes are not citizens - and free white men who have paid public taxes and arrived at full age, but hove not a freehold of fifty acres, inasmuch as they may vote for one branch and cannot vote for the other branch of our legislature, would be in an intermediate state, a sort of hybrids between citizens and not-citizens. The term "citizen" as understood in our law, is precisely analogous to the term subject in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people - and he who before was a "subject of the king" is now "a citizen of the State." Considering therefore the defendant as having a right to the protection of the clauses in the constitution and declaration of rights on which he relies, we proceed to the examination of the alleged repugnancy between these and the act of 1831. The 39th section of the constitution is in these words: "The person of a debtor, where there is not a strong presumption of fraud, shall not be continued in prison after delivering up bona fide all his estate, real and personal for the use of his creditors in such manner as shall be hereafter regulated by law." ....
It is quite clear that Judge Gaston's references to "our law" and "our constitution" are references to the statutes and Constitution of North Carolina. As North Carolina has a reception statute the cited sentence is true in North Carolina. The same can not be said for the federal government which does not incorporate common law via Constitution, reception statute, or other method.
The cited sentence is inapplicable to the federal government. It is erroneous to apply it to the federal government
A court's discussion, judicial dicta, is not authoritative and is not to be followed when it is found to be erroneous. The statements concerning a "same rule" of naturalization existing from colonial time through to 1898, and the application of Manuel to equate "citizen" and "subject" are erroneous, not authoritative and are not precedential. While lower courts are bound to follow the decision in Ark, they can not rely upon erroneous statements.