Posted on 04/24/2010 9:18:10 AM PDT by Mr Rogers
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 facts as stated in the decisions:
"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.
The father later returned to Sweden and formally renounced his US citizenship.
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.
In a unanimous decision, the US Supreme Court found:
"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.
Page 307 U. S. 326
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."
In a bit more detail, it found:
"First. On her birth in New York, the plaintiff became a citizen of the United States. Civil Rights Act of 1866,
Page 307 U. S. 329
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.
Notice they also quote approvingly of the decision involving Steinkauler:
"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".
This is true later on, when the Court says:
"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".
You can read the full decision at:
http://supreme.justia.com/us/307/325/case.html#328
Second it did NOT take you long to get your "Knee-Pads fasten, huh???
First, we’ve been having a largely polite exchange of views on this thread. It seems to be ending this morning, with the bitter birthers showing up...
Second, if you argue in court like you do on these threads, it is no wonder you lose. EVERY case.
I've given you the only answer I can give. I'm not clairvoyant, nor to I posses supernatural powers. Therefor, it is impossible for me to determine if he was born where he says he was born. But, if he was born where he says he was born, then he is constitutionally qualified for the office.
My answer would be the same for any presidential candidate, unless I had personally witnessed their birth.
“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.”
Would mind to discuss your weak opinion with Mario Apuzzo, Esq., an esteemed Attorney???
There are probably hundreds of links on that site that may useful for you to research!!!
It isn’t MY opinion. The US Supreme Court has ruled that the actions of the parent cannot remove the citizenship one acquires by birth in the US.
Read the case this thread is posting...”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.”
Apuzzo doesn’t get a vote.
See post 198!!!
Is that the same law that the Senate understood when they drew up that SR511 for McCain in which they said that he was a natural born citizen because of birth on American territory AND his parents [plural] were both American citizens at the time of his birth, something that Obama clearly falls one parent short of???
You will have to forgive him as he is incorrigible. He posted this case Perkins v Elg only to find out from others that he didn’t understand it to begin with and the case proves the very definition of “natural born citizen” that he is trying to argue against.
“The Supreme Court would not remove him even if they had an open/shut case. The Constitution requires them to leave the job of removal up to Congress.”
I don’t know if you were around in the early 70’s, but it was the SCOTUS decision requiring the Nixon White House to release the then-recently revealed tapes that lead to the pressure on Republican Senators to go to Nixon to ask for his resignation in the face of a sure impeachment proceeding.
The SCOTUS decision itself did not bring about the removal of Nixon, but led the Congress to have to deal with it. That SCOTUS decision was the beginning of the end for Nixon.
Similarly, if the SCOTUS ever took an eligibility case and determined that NBC means what many here argue, i.e., that the Framers’ intent in embedding the ‘natural born’ requirement in the Constitution was to assure a POTUS born on US soil AND to two citizen parents, it would not take long for Congress to act. Any such SCOTUS decision would not, itself, remove Obama. It would surely lead to his removal by Congress.
If it's important for you to believe (whatever it is you just said), then believe it. I haven't been able to find a single opinion, either from a federal court, or written in a recognized law review journal, that supports what your asserting.
My recommendation: go to law school, write your opinion, and publish in your school's law journal. You can be the first.
Esteemed attorney?
Esteemed (definition)
2 a : to view as : consider b : think, believe
3 : to set a high value on : regard highly and prize accordingly
Whatever side you come down on in this birther business, I don't think anyone giving a fair reading of Mr. Apuzzo's CV, could describe him as "esteemed". Perhaps he's capable, perhaps he's competent, perhaps he's even a fine attorney. But, from what I have been able to gather from sites like Justia, his primary areas of practice are...
Car Accidents
Criminal Law
DUI / DWI
Injury Law
Municipal Law
I have not been able to find a single scholarly work published in any known law review journal, to say nothing of the "esteemed" journals. He has never been an attorney of record in a Supreme Court case, or any federal appellate case that I can find. I'm not even sure if he's admitted to the federal bar, although as a former JAG officer, that would seem likely. And, as best as I can tell, he is not now, and never has been on the faculty of any law school, in any capacity, to say nothing of the "esteemed" law schools.
Certainly, Apuzzo is free to opine about any matters - legal or otherwise - he chooses; it is still a free country, after all. But, why anyone would value such an opinion, is a mystery.
That's right.......I hate commies. You have a problem with that?
Not according to our Constitution and the founding fathers. "Natural born citizen' requires both parents to be citizens.
I'm sure Nancy and Harry would expedite the matter right quick. Most of Congress and much of the country would simply disagree with such a precedent-breaking SCOTUS interpretation. You don't fit the law to current needs.
Maybe if it were to transpire that Zero was actually born in Mombasa, son of BHO, Sr. and red-haired tramp from Liverpool ... now that would be open/shut
!
File the appropriate paperwork with whom?
You're not looking hard enough. Try to find someone who actually read it or the Constitution or the historical writings of Supreme Court Justices or talk to their cleaning ladies.
Then you should have absolutely no problem citing any number of articles published in known law review journals, of which there are dozens.
However, the opinions of non-lawyers, non-scholars or other internet bloggers I find absolutely and wholly without merit. Of course, without these people, birthers would only have the weather to talk about.
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