Birthers and Perkins V Elg

I'm not a lawyer, nor do I play one, so what follows is just IMHO on how the case of Perkins v Elg affects the definition of natural born citizen. I offer it, not as definitive, but as evidence that the Supreme Court has ruled in the past in a way that might well lead to its ruling in favor of Obama, if the case is based on the citizenship of Obama's presumptive father.

"The question is whether the plaintiff, Marie Elizabeth Elg. who was born in the United States of Swedish parents then naturalized here, has lost her citizenship and is subject to deportation because of her removal during minority to Sweden, it appearing that her parents resumed their citizenship in that country but that she returned here on attaining majority with intention to remain and to maintain her citizenship in the United States.

Miss Elg was born in Brooklyn, New York, on October 2, 1907. Her parents, who were natives of Sweden, emigrated to the United States sometime prior to 1906, and her father was naturalized here in that year. In 1911, her mother took her to Sweden, where she continued to reside until September 7, 1929. Her father went to Sweden in 1922, and has not since returned to the United States. In November, 1934, he made a statement before an American consul in Sweden that he had voluntarily expatriated himself for the reason that he did not desire to retain the status of an American citizen and wished to preserve his allegiance to Sweden.

In 1928, shortly before Miss Elg became twenty-one years of age, she inquired an American consul in Sweden about returning to the United States and was informed that, if she returned after attaining majority, she should seek an American passport. In 1929, within eight months after attaining majority, she obtained an American passport which was issued on the instructions of the Secretary of State. She then returned to the United States, was admitted as a citizen and has resided in this country ever since."

Both parents were originally Swedish. The father was naturalized as a US citizen the year before Marie was born. It is unclear to me if her mother was ever naturalized - one sentence would indicate yes, the other no. Some say the mother would have been automatically naturalized when her husband was...and I don't know how naturalization law read at the time. The summary states " A child born here of alien parentage becomes a citizen of the United States."

Again, I concede that I do not know the naturalized status of the parents at her birth.

When Marie was 4, her mother took her to Sweden, where she and her mother lived as Swedes. This was IAW a treaty the US had with Sweden.

Marie was just short of 21 when she asked about returning to the USA. She was 22 when she returned.

The government argued that she was not a US citizen at all, IAW a treaty signed with Sweden.

"1. A child born here of alien parentage becomes a citizen of the United States. P. 307 U. S. 328.

2. As municipal law determines how citizenship may be acquired, the same person may possess a dual nationality. P. 307 U. S. 329.

3. A citizen by birth retains his United States citizenship unless deprived of it through the operation of a treaty or congressional enactment or by his voluntary action in conformity with applicable legal principles. P. 307 U. S. 329."

"6. The Act of March 2, 1907, in providing "That any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, . . . " was aimed at voluntary expatriation, and was not intended to destroy the right of a native citizen, removed from this country during minority, to elect to retain the citizenship acquired by birth and to return here for that purpose, even though he may be deemed to have been naturalized under the foreign law by derivation from the citizenship of his parents before he came of age. P. 307 U. S. 342.

This is true not only where the parents were foreign nationals at the time of the birth of the child and remained such, but also where they became foreign nationals after the birth and removal of the child.

7. Recent private Acts of Congress for the relief of native citizens who have been the subject of administrative action denying their rights of citizenship cannot be regarded as the equivalent of an Act of Congress providing that persons in the situation of the respondent here have lost the American citizenship which they acquired at birth and have since duly elected to retain. P. 307 U. S. 349."

"First. On her birth in New York, the plaintiff became a citizen of the United States. Civil Rights Act of 1866,

14 Stat. 27; Fourteenth Amendment, 1; United States v. Wong Kim Ark, 169 U. S. 649. In a comprehensive review of the principles and authorities governing the decision in that case -- that a child born here of alien parentage becomes a citizen of the United States -- the Court adverted to the

"inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship."...

... As at birth she became a citizen of the United States, that citizenship must be deemed to continue unless she has been deprived of it through the operation of a treaty or congressional enactment or by her voluntary action in conformity with applicable legal principles."

Notice they found that her citizenship rested, not in the citizenship of her father, but in being born in NY. This is true even if the child has alien parentage. They later cite "According to the Constitution and laws of the United States as interpreted by the courts, a child born to alien parents in the United States is an American citizen, although such child may also be a citizen of the country of his parents according to the law of that country." In that case, the parents were NOT US citizens.

"The facts were these: one Steinkauler, a Prussian subject by birth, emigrated to the United States in 1848, was naturalized in 1854, and in the following year had a son who was born in St. Louis. Four years later, Steinkauler returned to Germany, taking this child, and became domiciled at Weisbaden, where they continuously resided. When the son reached the age of twenty years, the German Government called upon him to report for military duty, and his father then invoked the intervention of the American Legation on the ground that his son was a native citizen of the United States. To an inquiry by our Minister, the father declined to give an assurance that the son would return to this country within a reasonable time. On reviewing the pertinent points in the case, including the Naturalization Treaty of 1868 with North Germany, 15 Stat. 615, the Attorney General reached the following conclusion:

"Young Steinkauler is a native-born American citizen. There is no law of the United States under which his father or any other person can deprive him of his birthright. He can return to America at the age of twenty-one, and in due time, if the people elect, he can become President of the United States; but the father, in accordance with the treaty and the laws, has renounced his American citizenship and his American allegiance and has acquired for himself and his son German citizenship and the rights which it carries and he must take the burdens as well as the advantages. The son being domiciled with the father and subject to him under the law during his minority, and receiving the German protection where he has acquired nationality and declining to give any assurance of ever returning to the United States and claiming his American nationality by residence here, I am of the opinion that he cannot rightly invoke the aid of the Government of the United States to relieve him from military duty in Germany during his minority. But I am of opinion that, when he reaches the age of twenty-one years, he can then elect whether he will return and take the nationality of his birth with its duties and privileges, or retain the nationality acquired by the act of his father. This seems to me to be 'right reason,' and I think it is law."

Notice that "native born" is used as sufficient basis that "He can return to America at the age of twenty-one, and in due time, if the people elect, he can become President of the United States..."

The Court makes no distinction between "native born" and "natural born citizen".

"Fifth. The cross-petition of Miss Elg, upon which certiorari was granted in No. 455, is addressed to the part of the decree below which dismissed the bill of complaint as against the Secretary of State. The dismissal was upon the ground that the court would not undertake by mandamus to compel the issuance of a passport or control by means of a declaratory judgment the discretion of the Secretary of State. But the Secretary of State, according to the allegation of the bill of complaint, had refused to issue a passport to Miss Elg "solely on the ground that she had lost her native born American citizenship." The court below, properly recognizing the existence of an actual controversy with the defendants (Aetna Life Ins. Co. v. Haworth, 300 U. S. 227), declared Miss Elg "to be a natural born citizen of the United States," and we think that the decree should include the Secretary of State as well as the other defendants. The decree in that sense would in no way interfere with the exercise of the Secretary's discretion with respect to the issue of a passport, but would simply preclude the denial of a passport on the sole ground that Miss Elg had lost her American citizenship."

Please note that the Court rejects the idea that she lost her "native born American citizen" and had instead remained a "natural born citizen".

So if we compare Marie with Barry, we find:

1 A - Marie had two foreign born parents, at least one of which was naturalized at her birth, but both of whom expressly rejected US citizenship.

1 B - Barry had one parent who was a citizen by birth, and a father who was not a US citizen at all.

2 A - Marie was taken to Sweden at 4 and raised as a Swede with Swedish parents.

2 B - Barry was raised primarily in the USA, by his mother and grandparents. His presumed father has no record of ever living with the mother, abandoned both (if possible) at a very early age, and only saw Barry one time. In addition, he was not a legal husband at the time, since he was already legally married to another woman.

3 A - Having spent most of her life abroad, Marie was a citizen by birth, a native citizen, and a natural born citizen. A native born citizen is presumed to be allowed to run for President.

3 B - Barry, having lived most of his life in the US and with no evidence he ever accepted any other citizenship, ran and was elected President, and certified by Congress with no dissent.

I understand birthers will continue to disagree that Barry was eligible. However, it seems clear to me that there IS a reasonable case to be made on the other side that Barry is a citizen, a native born citizen, and a natural born citizen as used by the US Supreme Court.

One doesn't remove a President from office lightly. To override the decision by the people as accepted by Congress would require an "open/shut" case - and I don't see this as "open/shut". While I think birthers have a reasonable interpretation, it doesn't seem to be well supported by the law - and certainly is not so overpowering as to justify removing Obama from office, if he was indeed born in Hawaii.

Just IMHO. Thoughts?

I would be thrilled to have a Supreme Court hearing. Whatever the verdict I would fully accept it.

It is outrageous though that common citizens are told that they have “no standing” and are frustrated by all three branches of our government from having Obama’s eligibility fully examined and resolved.

This fundamental flaw in our legislative and legal process needs to be fixed. It isn't just the natural born status of this particular president, surely other constitutional questions will arise in the future and a rational system for prompt and thorough resolution needs to be provided.

However, it seems clear to me that there IS a reasonable case to be made on the other side that Barry is a citizen, a native born citizen, and a natural born citizen as used by the US Supreme Court.

Not if he was born in Kenya.

Only a bona fide birth certificate can tell us where he was born.

Makes you wonder why he won't produce a birth certificate.

I will bet you one thing, though. He never intended to run for a second term.

According to this case, no actions by his parents would rob him of being a native born or natural born citizen. He would have to reject that by some act such as accepting a foreign citizenship, or living as a foreign citizen abroad.

Since he lived in the US as a citizen from the age of 10 on, he wouldn’t have any requirement to re-register as an American. His mother also seems to have retained her US citizenship throughout her life.

This is very interesting....and would take away the argument that “since Barack Obama, Sr was not a US citizen...Barack Obama, Jr is not natural born and cannot be President”

However....it still does not prove whether Barack, Jr was born in the United States....which the long form BC would prove. To be natural born, one must be born on US soil (which includes US territories)

Since Barack Obama has refused to allow his BC to be released...and has fought many challenges to it....he obviously is not born in the USA

Marie didn’t run for President, but the Court refers to her as a natural born citizen. It also approvingly cites a determination that a native born citizen would be eligible to run for President.

Again, I think birthers have ONE reasonable interpretation of what NBC means, but I don’t think they have the ONLY valid interpretation. I find it unlikely that the US Supreme Court will overturn previous cases and insist on removing Barry from office based on his father being a foreign citizen.

I would be satisfied if birthers would concede that they disagree with some of us on FreeRepublic, but the disagreement is not so clear cut as to call other Freepers trolls, Obamabots, paid employees of Obama, traitors, etc.

It ought to be possible to disagree without hatred.

Since Barack Obama has refused to allow his BC to be released...and has fought many challenges to it....he obviously is not born in the USA
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

An honest man would be **HONORED** to promptly prove with **all** of the best evidence that hat he was a natural born citizen.

A guilty man wastes the resources of the Department of Justice and ties up the time of U.S. attorneys to prevent discovery.

If this is an Alinsky dirty trick, please remember that Obama prevented these men and women of the Department of Justice from going after the bad guys at time when plots were being laid to blow planes out of the sky and KILL soldiers on their bases and recruitment centers. I don't think American voter will be amused.

I understand birthers will continue to disagree that Barry was eligible. However, it seems clear to me that there IS a reasonable case to be made on the other side that

Barry is a citizen,

Lets see the original long form birth certificate!

a native born citizen,

We know he wasn't naturalized. If he wasn't born in the USA (Hawaii) he would have had to have acquired citizenship via his mother when born overseas. As the law was written at the time, from what I've seen, he would not have. Therefore your points one and two are related. If he wasn't born here, he is probably not a citizen at all, but a long-standing illegal alien who should be deported.

and a natural born citizen as used by the US Supreme Court.

The usage that is key is that in the US Constitution. It would have to be interpretted by the court. Four of them would go back and find out what the term meant at the time. Four of them would decide what they want it to mean based on the political imperative of keeping Odumbo in office. So, it would be a close call either way.
Because the issue in the above case was merely the citizenship of the lady, and not whether she was a "natural born citizen" I don't see that it applies - except for being a very clear precident that the "Indonesian Appeal" facet of birtherism may not have much merit.

I haven’t called anyone a troll. Besides, I believe Obama was born in the U.S., I also believe that he is the son of Malcolm X. Clarence Thomas has already said that SCOTUS is evading the NBC issue. I do not expect Obama to be removed from office related to his birth certificate. I think it is much more likely that he would be removed for bribery, fraud, credit-card fraud, mail-fraud, identity theft, falsifying government documents, misappropriation of government funds, real estate fraud, abuse of office, and treason. If they decide to throw the birth certificate thingy in there - it is all just gravy.

Marie didn’t run for President, but the Court refers to her as a natural born citizen. It also approvingly cites a determination that a native born citizen would be eligible to run for President.

It ought to be possible to disagree without hatred.

Good point.

A lot of the Birthers (me included) are so tired of the MSM spin (inclduing MSFoxNews)....they just ridicule Birthers, and do not rationally discuss the issue. This is even a problem with people like Glenn Beck, Ann Coutler, Andrew Breitbart, and some others on the conservative end who are Enabling Obama with their MSM adopted spin

The most important thing with the entire BC issue is that, if proven that Obama is not born in the US, he would not get on the ballots for 2012. There would be so many challenges, and a few states passing laws, that the Democrats could not win the White House with Obama on the ticket.

I’ve had long arguments on this topic with other Freepers and didn’t see anyone called a traitor. Yes the Obama birth controversy is an emotional one. So I suppose some get carried away.

I very much appreciate your posting!

I used to be very sceptical over the “Obama is not a citizen” argument, but as I’ve learned more and watched him fillibuster the issue (which could be solved easily with a release of documents) ... well I’m not so sceptical anymore.

<>Please note that the Court rejects the idea that she lost her “native born American citizen” and had instead remained a “natural born citizen”. <>

Right — because she was born on American soil of two naturalized American citizens — a decision fully consistent with the traditional historical definition of “natural born citizen” as the following link shows:

http://www.thepostemail.com/2009/10/18/4-supreme-court-cases-define-natural-born-citizen/

No, Obama’s NBC status is definitely not an open and shut case. There is significant evidence on both sides of the argument. But whether or not a SCOTUS ruling would overturn the will of the people, this issue, IMHO, should be decided to firmly establish the law and set legal precedent. I don’t believe it is an absolute that Obama would have won the election had the question of his NBC status been widely known. So one could argue that the will of the people was preempted and thwarted.

Regarding Elg’s mother’s citizenship status, I believe she was automatically naturalized when her husband became so. I’ll try to find the relevant law and post it here. If I am correct, Elg would be a NBC as stipulated.

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