§ 1409. Children born out of wedlock
(a) The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of this title, and of paragraph (2) of section 1408 of this title, shall apply as of the date of birth to a person born out of wedlock if—
(1) a blood relationship between the person and the father is established by clear and convincing evidence, (2) the father had the nationality of the United States at the time of the person’s birth, (3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and (4) while the person is under the age of 18 years— (A) the person is legitimated under the law of the person’s residence or domicile, (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.
(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.
(c) Notwithstanding the provision of subsection (a) of this section, 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, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.
My research shows that that amendment was adopted in 1986 and therefore it was not in effect in 1961 and thus while it would make a person a citizen at birth, it would not make a person a "Natural Born" Citizen.
Thus while it would make Obama a Citizen, it would not give him "Natural Born" status. It would simply give him "Ex-Post Facto Legislatively Mandated Citizenship at Birth" status.
Please note:
1) “(2) the father had the nationality of the United States at the time of the person’s birth”
Obama’s father was not a U.S. national, so 1409 generally would not apply if it turned out the parents were unmarried.
2) “shall be held to have acquired at birth the nationality status of his mother.”
In a response to you on another thread, I explained the following: “While most people and countries use the terms “citizenship” and “nationality” interchangeably, U.S. law differentiates between the two [see Section 101(a)(21)-(22) of the Immigration and Nationality Act (INA)]. Under current law all U.S. citizens are also U.S. nationals, but not all U.S. nationals are U.S. citizens.” http://www.state.gov/documents/organization/86755.pdf
So leaving aside the “ex post facto” nature of the claim, even if Obama were a NATIONAL by virtue of that retroactively applied legal provision, it would NOT make him a CITIZEN etc.
3) FWIW, I ran across some additional information that may be of general interest: “A marriage that did not conform to the laws of the country or state in which it was performed may be a void marriage, but only after declared so by an
appropriate authority, usually a court in the jurisdiction
where the marriage occurred. Prior to such judicial
declaration, the marriage may be considered voidable.
A voidable marriage is considered valid for all purposes
unless and until annulled or voided by the court. Even
after a marriage is voided, there is every likelihood that
the children’s status will not be affected. Every state in
the United States, for example, considers children of a
void marriage to be legitimate (see 7 FAM 1133 Exhibit
1133.4-2, Part II). http://www.state.gov/documents/organization/86757.pdf (pdf p. 37)
Thus, IF Obama’s parents really were “married” but someone now wanted to challenge its legitimacy on grounds that it was void given Sr’s already being married, this would not affect the legitimacy of the marriage in terms of which set of citizenship rules might apply to an out-of-country birth.
§ 1409. Children born out of wedlock . . . c) Notwithstanding the provision of subsection (a) of this section, 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 . . . .
We are rapidly drifting into an area where I have to spend more time than I have available doing statutory analysis. I am not an immigration lawyer; I am a tax lawyer which is of course a more extensive and complex statute but one with which I am very familiar.
But the point you raise is obviously correct on the statute and the answer I believe is this (and it is not resolved completely by P-Marlowe's response hereto in #4 although his conclusion is in fact accurate).
The actual effective date, as I suspect you have already concluded, is found in the effective date notes under 8 USC 1101 and is from Section 309(b)(15) of Pub. L. 102-232 which provides that "The amendments made by section 8 of the Immigration Technical Corrections Act of 1988 [Pub. L. 100-525, amending this section, sections . . . 1409 . . . shall be effective as if included in the enactment of the Immigration and Nationality Act Amendments of 1986 (Public Law 99-653)." That Act, as set out above, applies only to persons born after November, 1986 and is thus inapplicable to Obama.
Note further, that to be subject to this provision, he is going to have to demonstrate he was born out of wedlock--on the current record, he claims his parents were married. And most important, he will need to demonstrate that he was born outside the US--thus disqualifying him from serving as President under Article II, Sec. 1, Par. 4 of the Constitution which is presumably the essential question.
Let me think positive..
They’re both ineligible and the Primary process has to start all over again.