First, as you surely know it is possible to find an attorney who will claim and argue just about anything for or without a price, including propositions which will end in the attorney’s own gruesome death. Accordingly, we must dispense with any notion that something an attorney argues must necessarily be authoritative and valid because of the attorney’s expertise or lack thereof.
“Kabar asserted that US citizenship flat out doesn’t exist until it is recognized. IOW, if Cruz hadn’t applied for some Certification of Citizenship, Cruz would not be a citizen of the US - notwithstanding the fact that 8 USC 1401 says Cruz is a US citizen at birth.”
Yes, that does happen in some cases and not in others. Remember, the U.S. Government does not officially recognize dual citizenship as being lawful under U.S. Federal laws. Claims of dual citizenship are being accommodated by the U.S. Government by turning a blind eye towards a person’s exercise of other citizenship in all but a few circumstances, and this id due to decisions by the Supreme Court of the United States. In some cases, however, the foreign state wherein the birth took place or the foreign state of the father’s citizenship does not permit the person to claim citizenship with any other state. In this circumstance the parents and/or the child upon reaching the age of majority must renounce any U.S. citizenship or right to claim U.S. citizenship. In these circumstances a child may never claim or secure the right to U.S. citizenship despite the willingness of the U.S. Government to grant such U.S. citizenship at birth.
It should also be remembered that this right to U.S. citizenship at birth is authorized by unnatural, manmade, and artificial statutory law as a means of administering the immigration and naturalization of foreign born persons and not by natural law. Consequently, the statutory laws can be changed in the near or the distant future to compel the Supreme Court of the United States and the Department of State to enforce the existing citizenship law that allows a person to declare allegiance only to the united States or only to a foreign state. Likewise the statutory law could return the naturalization laws to where it was before 1866, which denied U.S. citizenship to foreign born children of U.S. citizens and/or to U.S. born children of foreign or alien parents residing in the United States. Because natural born citizens acquire their U.S. citizenship by the operation of natural law and not by statutory law, no statutory law can deprive them of their U.S. citizenship at birth.
“Kabar says a person can elect, by inaction, to void the operation of 8 USC 1401. You intimated similar, saying one becomes a citizen “But only after securing U.S. diplomatic recognition of the U.S. citizenship.””
The U.S. Statute authorizes the right to claim and adopt U.S. citizenship at birth, but it cannot compel a foreign born person to adopt and give allegiance to the sovereignty of the United States required to actually practice and be a U.S. citizen. There is also the issue of the effect upon a person when the person’s parents choose to renounce the child’s U.S. citizenship or fails to claim and assert U.S. citizenship in accordance with the minimum requirements for residency. Under the Law of nations, such a child may or may not retain a right to declare a claim for U.S. citizenship or other foreign citizenship upon reaching the age of majority or after reaching the age of majority for some foreign states. This is/was true for descendants of Cuban citizens.
That argument will be resolved the same way the argument about abortion and homosexual marriage being in the 14th amendment is resolved - never!
I'm sure there are cases that go the other way too, citizenship improvidently recognized. IOW, a person is not a citizen, but the government issues papers to the effect that make that person a citizen. Same loggerheads, one side no citizenship, the other side citizenship is what the government recognizes, and that is conclusive, final, and always correct.
The discussion was narrowly on the operation of 8 USC 1401(g) as it stands, and even more particularly on whether or not "a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years" is, as a matter of law, a "citizen of the United States at birth," before that person is recognized as a 8 USC 1401(g) citizen by the government.
Is 1401(g) citizenship automatic, or conditional on applying for recognition?
There is a broader, similar question about citizenship in general. Is any citizenship automatic, or does all citizenship depend on showing suitable evidence (thinking of the person born in the US to US citizen parents, but without a BC, for example) to the government.
It "can't" usually because it doesn't even know the person exists! And even then, it practices discretion just because it is heavy handed and wasteful to go after foreign-born citizens, when you have plenty of locals to make into taxpayers, criminals and cannon fodder.
But (in my view) as a matter of law, the US government has the power and right to compel these citizens, the same way it compels the citizens it knows about. If the citizen doesn't like it, he can renounce his US citizenship.