Tisdale v. Obama and the “Natural Born Citizen” Clause

                                                              By Mario Apuzzo, Esq.
                                                                  February 16, 2012

There are some supporters of putative President Barack Obama commenting on the recent 4th Circuit court decision, Tisdale v. Obama, Tisdale v. Obama, Civil Action No. 3:12-cv-00036-JAG, http://www.scribd.com/doc/80563782/Tisdale-v-Obama-et-al. which held not by published decision but by order that any child born in the U.S. is a “natural born citizen.” In Tisdale, the pro se plaintiff (not represented by an attorney), on January 23, 2012, filed in the Federal District Court of the Eastern District of Virginia, a complaint against presidential candidates, Barack Obama, Mitt Romney, and Ron Paul, seeking an injunction against the Virginia State Board of Elections from certifying any candidate who is not a “natural born Citizen” from appearing on the ballot in the upcoming general election of November 6, 2012. While the Court on January 23, 2012, granted Tisdale’s motion to proceed as a pauper which he had filed earlier on January 17, 2012, on the same day and in the same Order also dismissed his complaint with prejudice for failure to state a claim upon which relief can be granted. With all due respect for Judge Gibney, as I will show, not only has he given us an incredibly hurried decision that does not provide his own independent thoughtful and reasoned analysis of the meaning of an Article II “natural born Citizen” based on the historical and legal record, but the case citations he includes in his 2 and ½ page Order to support his decision do not provide any basis for his conclusion that any child born in the U.S. is a “natural born citizen.”

Before I get to the actual “merits” of the Court’s decision, I would like to make a few preliminary comments. In Tisdale, the plaintiff was pro se which means he was not represented by an attorney. Hence, again like in Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind. Ct.App. 2009), transfer denied, 929 N.E.2d 789 (2010), we have a court decision telling us what the court thinks is a “natural born Citizen,” a monumental decision given the national security implications of the issue, without the benefit of the court having received briefing by lawyers who are trained to raise all applicable issues and argue all aspects of the facts, law, and historical record that are applicable to the question of what is a “natural born Citizen.” It is very unfortunate that the two cases which have decided to decide the Obama eligibility on merits did not have the involvement of attorneys who could have provided the courts with briefs based on in- depth research.

It is basis constitutional law that a court will attempt to find a way to dispose of a case without having to address and resolve the merits of any constitutional issue. This is called judicial restraint. As I will show below, Judge Gibney, like so many of our courts before him, could have made a case for dismissing the plaintiff’s complaint on standing and thereby avoiding reaching the merits. But he nevertheless for some reason that he does not address in his order felt compelled to reach the merits. The same happened in Ankeny where the court could have easily disposed of the case strictly on a state-law issue without reaching the constitutional issue regarding what is a “natural born Citizen.” But Ankeny too, felt compelled without telling us why to reach the merits of the constitutional issue. These developments are quite concerning, not only for the sake of purity of the constitutional legal process, but given that both plaintiffs in both cases were pro se and therefore without the benefit of legal counsel.

Judge Gibney does not show in his Order how the federal district court had jurisdiction over Tisdale’s application for an injunction enjoining the Virginia State Board of Elections from certifying the defendants for the presidential ballot for lack of being “natural born Citizens.” The first thing that a federal court does before it can addresses the merits of any case is to demand that the parties show how the court has jurisdiction over the subject matter. Only after being satisfied that it has such jurisdiction will a federal court proceed to then address the merits of any case filed before it. We have seen this very concept unfold in the many Obama eligibility suits that have been filed in the federal courts. For example, both the New Jersey federal court and the 3rd Circuit Court of Appeals dismissed Kerchner v. Obama/Congress that I filed in the federal court in New Jersey. The court dismissed the case, finding that plaintiffs did not prove they had standing to sue Obama and Congress (the legal requirement that a plaintiff show that he or she suffered a injury caused by the defendant’s conduct for which the court can give a remedy). Since the court dismissed the case for lack of standing, it never reached the merits concerning the definition of a “natural born Citizen.” The case was first hear in the New Jersey Federal District Court and reported at Kerchner v. Obama, 669 F.Supp.2d 477 (D.N.J. 2009). Never reaching the merits of the questions of whether Obama conclusively proved that he was born in Hawaii or that he meets the constitutional definition of an Article II “natural born Citizen, the District Court dismissed the case because of standing and political question.

I appealed the case to the 3rd Circuit Court of Appeals, whose decision is reported at Kerchner v. Obama, 612 F.3d 204 (3rd. Cir. 2010). The Third Circuit, also not reaching the merits of the case, affirmed the lower court, saying the plaintiffs did not have Article III standing. The 3rd Circuit Court of Appeals neither agreed nor disagreed with my argument that American “common-law,” based on natural law and the law of nations, provides the only current definition of an Article II “natural born Citizen” and that that definition which has never been changed and which continues to the present is a child born in the country to citizen parents. I argued that this definition has been confirmed by, among other sources, Minor v. Happersett which held in 1875 that the definition of a “natural-born citizen is that already existing under “common-law” which is “all children born in a country of parents who were its citizens.” Minor v. Happersett, 88 U.S. 162, 167-68 (1875). The Court said: “We need not discuss Appellants’ contention that ‘the original common law definition of an Article II ‘natural born Citizen’ . . . is a child born in the country to a United States citizen mother and father.’ Appellants’ Br. at 18. That assertion goes to the merits of whether President Obama is in fact eligible to hold office, which we cannot address unless Appellants first establish Article III standing.” Kerchner v. Obama, 612 F.3d 204, 209, n.4, 2010 U.S. App. LEXIS 13608 . As we can see, the Court said that my clients did not have standing to bring their action against Obama and Congress and it could therefore not address the merits of whether Obama was a “natural born Citizen” under the proposed “common-law” definition. The Court then said that the plaintiffs’ remedy concerning Obama’s eligibility was in the vote which had to be exercised in the voting booth.

I then filed a petition for a writ of certiorari with the U.S. Supreme Court, which also not reaching the merits, denied the petition without giving any reason. The U.S. Supreme Court denial of the petition is reported at Kerchner v. Obama, 131 S.Ct. 663 (2010).

In short, no court ever decided the merits of the Kerchner case in which I argued that Obama has yet to conclusively prove that he was born in Hawaii and that even if he was born in Hawaii, he is not an Article II “natural born Citizen” because when he was born he was born to a non-U.S. citizen father. So, with Tisdale, we have a situation wherein the Court rendered a “merits” decision on the meaning of a “natural born Citizen” without the Court examining whether plaintiff had standing which is needed to give the court jurisdiction. And this is not even to mention that the Court did not address the heavy legal standard which a plaintiff must meet in order to be granted an injunction.

What is absolutely amazing about Tisdale is that the Court dismissed the case on the same day that plaintiff filed his complaint, January 23, 2012, by simply filing an Order. The docket of the court even has the Court’s dismissal order of January 23, 2012 as Document 2 while the complaint which was also filed on January 23, 2012 is listed as Document 3. So the Court did not even wait for the court’s clerk’s office to upload the complaint to the court’s web site or for the defendants to file an answer or a motion to dismiss for lack of standing or based on some other defense. Rather, the Court simply on its own on January 23, 2012 (the same day the complaint was filed which I presume was done either in person or by mail and not electronically) dismissed the complaint for what is written in the complaint, not even giving the pro se plaintiff the chance to brief the legal issue of the meaning of a “natural born Citizen.” The Court dismissed the complaint so quickly that the defendants did not even have to argue that the plaintiff does not have standing. The court’s sudden actions also leave us thinking how much research and thought did the Court put into its dismissal order which is based on the definition of an Article II “natural born Citizen,” a definition which in the eyes of the Founders and Framers has monumental and critical importance to the survival and preservation of the constitutional republic. The Court did not render any comprehensive decision. This Order is not a published precedential decision, and Obama’s supporter surely keep that fact out of the public discussion. Finally, on January 24, 2012 (the next day after the dismissal), plaintiff filed a Notice of Appeal to the 4th Circuit Court of Appeals where the case is currently pending.

Now let us examine the substance of the Tisdale decision:

(1) The Court in Tisdale said:

“It is well settled that those born in the United States are considered natural born citizens. See, e.g., United States v. Ark [sic meant Wong], 169 U.S. 649, 702 (1898) (‘Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States.’)”

But these Obama supporters only provide this part of the quote: “It is well settled that those born in the United States are considered natural born citizens.”

We can note that these Obama supporters omit the Court’s citation to and parenthetical explanation of Wong Kim Ark. These supporters probably know that Wong Kim Ark’s holding does not support the Tisdale Court’s holding and they just cannot bring themselves to tell us that Judge Gibney relied upon Wong Kim Ark and the parenthetical statement for his decision. We know that Article II, Section 1, Clause 5 includes both a “natural born Citizen” and “Citizen of the United States,” with only the former being eligible to be President for those born after the adoption of the Constitution. But the quote from Wong Kim Ark uses the phrase “citizen of the United States.” So how does Judge Gibney want to use Wong Kim Ark’s statement that Wong was a “citizen of the United States” to show that Obama is a “natural born Citizen?” In light of the critical constitutional distinction between a “natural born Citizen” and a “Citizen of the United States, on what basis does Judge Gibney go from Wong’s “citizen of the United States” to his “natural born Citizen?” From the clear text of the Wong holding regarding a “citizen of the United States,” Wong Kim Ark’s holding without more does not support Judge Gibney’s statement regarding a “natural born Citizen.”

Additionally, by leaving off the reference to Wong Kim Ark, these Obama supporters want to mislead the public into thinking that the Court conducted its own independent thoughtful and reasoned analysis based on the historical and legal record to arrive at its conclusion which a cursory reading of the Court’s decision shows it did not.

Again, Judge Gibney states: “It is well settled that those born in the United States are considered natural born citizens.” But the text of Article II, Section 1, Clause 5 clearly states “natural born Citizen,” not “born citizen.” We surely cannot just leave out words when we interpret a constitutional provision, especially when those words are part of a clause which as a whole is a word of art or an idiom. When the Court’s statement it reminded me of the guy who takes a motor apart and puts it back together again but has pieces left over. I see that the Court accounted for “born.” But what ever did it do with “natural?” Indeed, it is just one of those pieces left over. We will just throw it in the garbage. No one will ever notice.

(2) In support of its statement, “[i]t is well settled that those born in the United States are considered natural born citizens,” the Court cites Wong Kim Ark and the holding of the case. But that case and its holding do not directly relate to a “natural born Citizen.” Rather, it concerns only a “citizen of the United States” under the Fourteenth Amendment. Wong even confirmed that there is a distinction between a “natural born citizen” child born in the U.S. to citizen parents and a “citizen” child born in the U.S. to alien parents. In fact, the Wong holding that Judge Gibney provides does not even include the clause “natural born Citizen” in it. The Tisdale Court is simply putting words into the mouth of the Wong Court which are not there. There is language or the lack of language in Wong which shows that the Court recognized the distinction between a “natural born Citizen” and a “citizen of the United States,” and that it went as far as only holding Wong to be a Fourteenth Amendment “citizen of the United States” and not an Article II “natural born Citizen.”

First, the question presented and holding of the Court speak of a “citizen of the United States” under the Fourteenth Amendment, not a “natural born Citizen” under Article II. The Court stated its holding thus:

          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 parents
          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.

No where in the question presented or in the Court’s holding do we find the words “natural born Citizen.” Not one quote from the Court exists which shows that the Court found Wong to be a “natural born Citizen.” The Court said in its holding that it was deciding “the single question.” The only question before the Court was whether Wong was a Fourteenth Amendment “citizen.” Hence, the Court answered that “single question” and not answering any other question, surely did not also answer the question of whether Wong was also an Article II “natural born Citizen.” It did not address the question of whether he was an Article II “natural born Citizen,” which would involve a different question than the one raised before the Court which involved only the Fourteenth Amendment.

Second, Wong Kim Ark cited and quoted Minor’s “common-law” definition of a “natural-born citizen,” with no criticism or distinguishing of that definition to reach its holding that Wong was a “citizen of the United States.” This is critically important because Minor had held in 1875 that the definition of a “natural-born citizen is that already existing under “common-law” which is “all children born in a country of parents who were its citizens.” Id. at 167-68. But Wong was clearly not born to citizen parents. Hence, if the Court were addressing the meaning of a “natural born Citizen” it would have had to explain why Minor’s presentation of that definition either was wrong or did not apply. The point is that Minor would have had to make a comment about what Minor said was the already established “common-law” definition of a “natural born Citizen.” But we know from reading Wong Kim Ark that the only thing the Court did regarding Minor was cite and quote the definition of a “natural-born citizen” which it confirmed. If the Court was willing to abandon or distinguish that definition, it would have done so.

Third, Wong Kim Ark said, by quoting Mr. Binney: “‘The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’” Wong Kim Ark, at 169-70 (citing and quoting Horace Binney, The Alienigenae of the United States Under the Present Naturalization Laws (1853). Both the Court and Binney erred in contending that the right to citizenship in the United States “never descends in the legal sense,” for the definition of a “natural born Citizen” is based both on inheritance of citizenship from citizen parents which concept emanates strictly from natural law and on acquiring citizenship from place of birth which has its origins in positive law. Also, note Binney’s reference to “in the country” which is directly out of Vattel Section 212’s definition of a ‘natural-born citizen.” Note also that, with the Court requiring “birth in the country” in order to acquire birthright citizenship if one does not otherwise qualify for the status under some naturalization statute, the Court recognized that only a child born “in the country” to citizen parents can be a “natural-born citizen.” The Court by this quote told us in clear words that while both a child “born in the country” to citizen parents and a child “born in the country” to alien parents are “citizens” by the mere fact of being “born in the country,” only a child born “in the country” to citizen parents is a “natural-born citizen.” The reason for this distinction is that under the English common law which the Court applied to make Wong a “citizen,” any person born in the King’s dominions and in allegiance to him, regardless of how weak that allegiance may be due to the child’s parents being aliens, was a “natural born subject.” Emer de Vattel in Section 214 of the The Law of Nations, Or, Principles of the Law of Nature (London 1797) (1st ed. Neuchatel 1758), explained that this form of granting subjectship in England was actually naturalization at birth by the only fact of being born in its dominions and without reference to the citizenship of the child’s parents (“Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalises the children of a foreigner”).

Wong Kim Ark was willing to make Wong a “citizen” because he was born in the United States and his parents’ domicile in the United States at the moment of his birth created a strong enough allegiance to the United States (in the words of Lord Coke and Blackstone local and temporary) which was “strong enough to make a natural subject, for if he hath issue here, that issue is a natural born subject.” Calvin’s Case, 7 Rep. 6a (1608). Wong Kim Ark. 169 U.S. at 693. Yet that allegiance was not as strong as if the parents had been citizens of the United States and therefore not strong enough to make Wong a “natural-born citizen.” Under American constitutional “common-law,” which in the area of national citizenship is based on natural law and the law of nations (a combination of natural law and positive law), such local and temporary allegiance in the child’s parents could be strong enough to satisfy the “subject to the jurisdiction” requirement of the Fourteenth Amendment, but it could never be strong enough to make a “natural born Citizen,” which is the exacting standard used in our Constitution for presidential eligibility. Wong Kim Ark found that both of these factual scenarios satisfied the Fourteenth Amendment’s “jurisdiction” clause and therefore produced citizenship by the mere fact of being born in the country, but recognized that only the latter were “natural born Citizens.”

Wong Kim Ark used the English common law to give current meaning to the Fourteenth Amendment. Of course, with no such amendment existing when the Founders and Framers drafted the Constitution, they would not have had any need to look to the English common law for such assistance. Furthermore, the Founders and Framers would never have adopted the English common law standard of a “natural born subject” to define an Article II “natural born Citizen.” And we can be assured of this because, among the many other existing sources revealing this fact, James Madison tells us this. In The Federalist No. 42 (J. Madison), Madison said:

          The power to define and punish piracies and felonies committed on the high seas, and offenses 
          against  the law of nations, belongs with equal propriety to the general government, and is a still 
          greater improvement on the articles of Confederation. These articles contain no provision for the case 
          of offenses against the law of nations; and consequently leave it in the power of any indiscreet 
          member to embroil the Confederacy with foreign nations. The provision of the federal articles on the 
          subject of piracies and felonies extends no further than to the establishment of courts for the trial of 
          these offenses. The definition of piracies might, perhaps, without inconveniency, be left to the law of 
          nations; though a legislative definition of them is found in most municipal codes. A definition of 
          felonies on the high seas is evidently requisite. Felony is a term of loose signification, even in the 
          common law of England; and of various import in the statute law of that kingdom. But neither the 
          common nor the statute law of that, or of any other nation, ought to be a standard for the 
          proceedings of this, unless previously made its own by legislative adoption. The meaning of the term, 
          as defined in the codes of the several States, would be as impracticable as the former would be a 
          dishonorable and illegitimate guide. It is not precisely the same in any two of the States; and varies in 
          each with every revision of its criminal laws. For the sake of certainty and uniformity, therefore, the 
          power of defining felonies in this case was in every respect necessary and proper.

So Madison, who was given the title of “Father of the Constitution” by his own colleagues at the constitutional convention of 1787 and who supported a strong national executive, http://www.montpelier.org/explore/james_madison/father_constitution.php, told us in no uncertain words that the English common law “would be a dishonorable and illegitimate guide” for providing a definition for “felonies” which is a term that is included in the Constitution. Madison objected to using the English common law as a source by which to define “felonies” because of its “loose signification” within that law. He even objected to using English statutes because of their “various import” on the matter. He explained that neither the common law nor statute law of England could provide the standard to define “felonies,” a term in the Constitution, unless that law was accepted in the United States “by legislative adoption,” which it was not. He also emphasized that there was a need for “certainty and uniformity” in the standard to be established for the definition of “felonies.” There can be little doubt that on providing a definitional standard for a “natural born Citizen,” Madison would have echoed the same sentiments. The English common law also provided a very loose standard for defining a “natural born subject,” for it included therein both persons born in the King’s dominions to English “natural born subjects” and born there to aliens, and persons who through naturalization after birth were also called “natural born subjects.” There exists no evidence that the English common law was ever adopted by the Founders and Framers to define a “natural born Citizen.” Because of the loose definition under the English common law of a “natural born subject,” that law also did not provide “certainty and uniformity.” Finally, he would also have considered the English common law as ‘a dishonorable and illegitimate guide” for defining who could be President and Commander in Chief of the Military in the new constitutional republic which had been recently created by a bloody revolution fought against that same very nation. For further reading on my position that the Founders and Framers relied upon the law of nations and not the English common law to define an Article II “natural born Citizen,” see my August 20, 2009 essay entitled, “’The Law of Nations or Principles of Natural Law’ as U.S. Federal Common Law Not English Common Law Define What an Article II Natural Born Citizen Is,” accessed at http://puzo1.blogspot.com/2009/08/law-of-nations-and-not-english-common.html.

All this is critical since the original and amended Constitution, all Acts of Congress, and treaties read as a whole show that there is a distinction between a “natural born Citizen” and a “citizen of the United States,” with Article II, Section 1, Clause 5 requiring that for those born after the adoption of the Constitution, a “Citizen of the United States” is not sufficient for presidential eligibility and that rather one must be a “natural born Citizen.”

(3) Judge Gibney cites Perkins v. Elg, 99 F.2d 408, 409 (1938), but that case supports the plaintiff’s position and not the Court’s. In that case, the child was born in the United States to citizen parents. The lower court found Elg to be a “natural born citizen.” The U.S. Supreme Court confirmed that decision. How can that case be cited for the proposition that a child born in the United States is a “natural born Citizen” when those were not the facts of the case and surely not the holding of the Court? With is also odd is that Judge Gibney cited the Circuit Court decision but failed to note that the case was appealed to the U.S. Supreme Court which rendered a decision reported at Perkins v. Elg, 307 U.S. 325 (1939) (The U.S. Supreme Court affirmed the lower court ruling which found that Elg who was born in the United States to citizen parents was a “natural born citizen”).

(4) Judge Gibney cites the Fourteenth Amendment as support for his statement that a “natural born citizen” is any child born in the United States. But as the U.S. Supreme Court in Minor v. Happersett (1875) explained, that amendment does not provide the standard for defining a “natural born Citizen” and in fact does not even mention the clause. Even Wong Kim Ark, when it gave us its definition of a “natural born Citizen,” cited and quoted Minor and made no reference to the Fourteenth Amendment as it did in deciding whether Wong, who was born to alien parents, was a “citizen of the United States.”

The Fourteenth Amendment is part of the Constitution and was already passed in 1875 when the U.S. Supreme Court decided Minor. So when Minor said that the definition of a “natural born Citizen” was not in the Constitution it also meant that it was not found in the Fourteenth Amendment. Rather, the Court said that the definition of a “natural born Citizen” was found in the “common-law” with which the Founders and Framers were very familiar. The Court then told us how that “common-law” defined a “natural born citizen.” Relying upon that “common-law,” it defined a “natural-born citizen” as a child born in a country to citizen parents. Given the definition that it gave, which included the constituent element of citizen parents, clearly the Court did not rely upon any English common law which does not include such a requirement. Rather, the Court relied upon American “common-law” which had its origins in natural law and the law of nations, as commented upon by Emer de Vattel in The Law of Nations, Section 212. In fact, Minor’s definition of a “natural born Citizen” is almost word for word Vattel’s definition of a “natural-born citizen” found in Section 212.

Another point is that Minor said that “[t]he the Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” By the use of the word “shall,” we can see that the Court set out to find a definition of the clause “natural born Citizen,” not just one example or description of a “natural born Citizen.” It would make little sense for a court to want to determine whether one is a “natural-born citizen” and not first search for a definition of the term. And Minor did provide the definition of a “natural-born citizen” about which it said there were no doubts. On the other hand, it said that “there have been doubts” as to the meaning of a “citizen,” referring to a Fourteenth Amendment “citizen of the United States,” which we know in the Minor’s definition of a “natural-born citizen” related to the parents of a “natural-born citizen,” but not to a “natural-born citizen” himself or herself.

(5) Finally, what is worse, none of the citations provided by Judge Gibney in his Order sufficiently support his conclusion that any child born in the United States, regardless of the citizenship status of his or her parents, is a “natural born Citizen.” Judge Gibney cites Hollander v. McCain, 566 F.Supp.2d 63 (D.N.H. 2008), in support of his on-the- merits dismissal with prejudice of Tisdale’s complaint for failure to state a claim. Judge Gibney, in citing that case, provided this quote:

          Moreover, “those born ‘in the United States, and subject to the jurisdiction thereof,’ . . . have been 
          considered American citizens under American law in effect since the time of the founding . . . and thus
         eligible for the presidency” (citing and quoting Hollander, 566 F.Supp.2d at 66).

What Judge Gibney did here is take two separate statements that came from two different courts (Wong Kim Ark and Schneider v. Rusk, 377 U.S. 163 (1964)) and joined them with ellipses to give the appearance that Hollander made that full statement. First, as I will show below, the court dismissed the Hollander case for plaintiff’s failure to prove Article III standing. A dismissal for lack of standing means that the court found it had no subject matter jurisdiction. If a court has no subject matter jurisdiction, it cannot decide anything in the case other than having decided that it had no jurisdiction and therefore dismissing the case. Hence, Hollander could not have provided any substantive explanation or conclusions on what is a “natural born Citizen.” But even though Hollander said that it did not “reach the rest of the parties’ arguments, including, most notably, the question of McCain’s constitutional eligibility to be President,” it still as “Background” provided its opinion as to the law to be applied in defining a “natural born Citizen,” and even citing and quoting Wong Kim Ark and Schneider, although as I have shown above, in an inaccurate manner.

Second, the Hollander case did not decide what Judge Gibney says it decided. What is amazing about the Hollander case is that it did not rely on Wong Kim Ark to find that any person born in the United States is a “natural born Citizen” and therefore eligible to be President. Rather, it only relied upon Wong Kim Ark to confirm, again while not having any jurisdiction, that persons born in the United States and “subject to the jurisdiction thereof” are considered “American citizens” under the Fourteenth Amendment. Again while it had no jurisdiction, Hollander then cited Schneider v. Rusk, 377 U.S. 163, 165 (1964) and relied on Schneider as if it had said in “dicta” (a statement appearing in a written court opinion made by the court in passing and not central to the court’s underlying decision) that such “American citizens” are therefore eligible to be President. Hollander did at least indicate in a parenthetical explanation that what it said Schneider said was “dicta” in Schneider itself. Here is the actual quote from Hollander upon which Judge Gibney did judicial surgery so as to create the statement I have quoted above which has no legal support from any U.S. Supreme Court decision:

          Those born “in the United States, and subject to the jurisdiction thereof,” U.S. Const., amend. XIV,   
          have been considered American citizens under American law in effect since the time of the founding,  
          United States v. Wong Kim Ark, 169 U.S. 649, 674-75, 18 S.Ct. 456, 42 L.Ed. 890 (1898), and 
          thus eligible for the presidency, see, e.g., Schneider v. Rusk, 377 U.S. 163, 165, 84 S.Ct. 1187, 12 
          L.Ed.2d 218 (1964) (dicta).

Id. at 66.

So, we can see from Hollander’s statement that at least Hollander explained that its statement that persons born in the United States and “subject to the jurisdiction thereof” are considered “American citizens” under the Fourteenth Amendment (citing Wong Kim Ark) and that such “American citizens” are therefore eligible to be President (citing dicta from Schneider), was made by joining two separate statements made by two separate courts (Wong Kim Ark and Schneider). But what Judge Gibney has done in his Order is erase Hollander’s notice that the statement was the product of combining two statements made by two separate courts. He has created one legal principle or statement by combining the statements and using ellipsis which makes it look as though Hollander itself made the whole statement. I can just imagine the Hollander made-up statement just being repeated by court after court when Hollander made no such statement. This reminds me of Judge Malihi in Georgia relying on Ankeny v. Governor of Indiana which said that Wong Kim Ark’s holding extended to declaring Wong to be a “natural born Citizen” when the Wong Kim Ark holding did no such thing.

Not only is Hollander mistaken that the Schneider case contains any dicta which supports its proposition that a child born in the United States without more is eligible to be President, the case does not say at all what Hollander said it said. In other words, the Schneider case itself does not support Hollander’s citation of that case for Hollander’s proposition that an “American citizen” under the Fourteenth Amendment without more is eligible to be President (again all said while Hollander had no jurisdiction). With Schneider not saying what Hollander says it says, Judge Gibney surely cannot properly rely on Hollander’s citation of the Schneider “dicta” which simply does no exist.

Let us examine what Schneider was about. The Schneider case was summarized in Rogers v. Bellei, 401 US 815 (1971), as follows:

          Schneider v. Rusk, 377 U. S. 163 (1964). Mrs. Schneider, a German national by birth, acquired 
          United States citizenship derivatively through her mother’s naturalization in the United States. She 
          came to this country as a small child with her parents and remained here until she finished college. 
          She then went abroad for graduate work, was engaged to a German national, married in Germany, 
          and stayed in residence there. She declared that she had no intention of returning to the United 
          States. In 1959, a passport was denied by the State Department on the ground that she had lost her 
          United States citizenship under the specific provisions of § 352 (a) (1) of the Immigration and 
          Nationality Act, 8 U. S. C. § 1484 (a) (1), by continuous residence for three years in a foreign state 
          of which she was formerly a national. The Court, by a five-to-three vote, held the statute violative of 
          Fifth Amendment due process because there was no like restriction against foreign residence by 
          native-born citizens.

           The dissent (Mr. JUSTICE CLARK, joined by JUSTICES HARLAN and WHITE) based its 
           position on what it regarded as the long acceptance of expatriating naturalized citizens who 
           voluntarily return to residence in their native lands; possible international complications; past   
          decisions approving the power of Congress to enact statutes of that type; and the Constitution’s 
          distinctions between native-born and naturalized citizens.

Id. at 821.

First, Schneider has never been cited as providing any actual definition of a “natural born Citizen,” for the case does not expressly provide any such definition. Rather, Obama supporters have cited the Schneider v. Rusk case to argue that one only needs to be a “native-born” citizen to be eligible to be President. They quote:

“We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President. Art. II, § 1.

***

Distinctions between native-born and naturalized citizens in connection with foreign residence are drawn in the Constitution itself. Only a native-born may become President, Art. II, § 1.”

Id. at 165.

In Schneider, the U.S. Supreme Court voided, based on Fifth Amendment due process, a federal statute that provided that a naturalized citizen should lose his United States citizenship if, following naturalization, he resided continuously for three years in his former homeland because the same type of provision did not apply to “native-born” citizens.

In the first quote, the Court explained that a “native born” citizen and a naturalized citizen have the same rights under the Constitution. But the Court also explained that under the Constitution only a “natural born” citizen is eligible to be President. Hence, the Court properly made a distinction between a “native born” citizen and a “natural born” citizen as they apply to one being eligible to be and having the privilege of being President. In this quote, the Court said that a “natural born” citizen is not the same thing as a “native born” citizen, for the Court acknowledged a “native born” citizen but said that under the Constitution only a “natural born” citizen can be President. Given its equal protection analysis, the Court when it said “native born” citizen was actually referring to a child born in the United States and made a “citizen” under the Fourteenth Amendment and when it referred to a “natural born” citizen in relation to being President was referring to Article II, Section 1, Clause 5. The Court also said that it is necessary to be a “natural born” citizen to be President (“only the ‘natural born’ citizen is eligible to be President”), or in other words, given the definition of a “natural born” citizen, it is necessary to be born in the United States to citizen parents to be eligible to be President. So it follows from this juxtaposition of “natural born” citizen and “native born” citizen that all “natural born” citizens are “native born” citizens but not all “native born” citizens are “natural born” citizens.

The Court in the second quote said that “only” a “native-born” citizen may become President. We cannot conclude from these two quotes that the Court said that a “natural born” citizen is the same as a “native-born” citizen.” First, a “native-born” citizen after the adoption of the Fourteenth Amendment has been interpreted to mean that someone became a U.S. citizen at the moment of birth by being born in the United States rather than by naturalization after birth. Second, since a naturalized citizen has the same rights and privileges as a “native-born” citizen, making a “native-born” citizen eligible to be President would make a naturalized citizen eligible to be President. Third, these quotes also do not mean that it is sufficient to be a “native born” citizen to be President. Rather, the Court in the second quote said that it is necessary to be a “native-born” citizen to be President (“[o]nly a native-born may become President”), or in other words, it is necessary to be born in the United States in order to be eligible to be President. “Only” signified that the condition is necessary, but it does not mean that the condition is sufficient. For example, I can say that only a person who has blood is alive. But clearly having blood is not sufficient to be alive. Rather, Schneider’s statement regarding “only” a “native-born” citizen is consistent with Minor and Wong Kim Ark which as we have seen above said that a “natural-born citizen” is a child born in the country to citizen parents. As we can see, both of these decisions acknowledged that birth in the country is one of two necessary conditions needed to be met in order to be a “natural born Citizen.”

So, taking these two quotes together, the Court first recognized that only a “natural born Citizen” is eligible to be President. We have to presume that the Court knew how Minor and Wong Kim Ark defined a “natural-born citizen.” Then, in order to distinguish in the only way which is permitted by the Constitution a “native born” citizen from a naturalized citizen, the Court said that it is necessary to be a “native-born” citizen or a “citizen” by having been born in the United States to be President and that naturalized citizens cannot meet that condition. We can come to this conclusion because in the first quote the court said that under the Constitution only a “natural born” citizen can be President and in fact, the Constitution uses the term “natural born” citizen and not “native born” citizen. The Framers were very careful in the words that they chose to include in the Constitution and we cannot simply replace one term for another without providing any reason and analysis for doing so. And we must presume that the Schneider Court knew how Minor and Wong Kim Ark defined a “natural born” citizen.” In short, we can read these quotes together to say that: (1) all “natural born” citizens are “native born” citizens, but not all “native born” citizens are “natural born” citizens; (2) a “native born” citizen if also born to citizen parents is a “natural born” citizen, but a naturalized citizen may never be; (3) only a “native born” citizen who is born to citizen parents is a “natural born” citizen and eligible to be President.

Hence, what we learn from the Schneider decision is that a person must be a “natural born” citizen to be President. This is correct, for the actual text of Article II, Section 1, Clause 5 uses “natural born Citizen” and not “native born” citizen. We also learn from this case that in order to be a “natural born” citizen, it is necessary but not sufficient that one is a “native born” citizen,” which both Minor and Wong Kim Ark confirm. Finally, while the Court did not define a “natural born” citizen, we know that an Article II “natural born Citizen” is a child born in the country to a U.S. citizen father and mother.

Furthermore, the Court in Hollander dismissed plaintiff’s claim that John McCain was not a “natural born Citizen” on the ground that Hollander failed to prove Article III standing to make that claim. The Hollander court never reached the merits of Hollander’s argument that McCain was not a “natural born Citizen.” In fact, the Court even said that it was not relevant for its decision where McCain was born. Additionally, dismissal for lack of standing is not with prejudice. Also, when a court dismisses a case for lack of standing, it says that the court does not have subject matter jurisdiction over the matter. A court that has no jurisdiction over a case cannot decide anything about the case other than to decide whether it had jurisdiction and if it decides it does not to dismiss it for lack of jurisdiction. But Judge Gibney did reach the merits of Tisdale’s “natural born Citizen” argument, relying upon a case that was dismissed for lack of jurisdiction. How can Judge Gibney rely on a case that was dismissed for lack of jurisdiction and which never reached the merits of the meaning of a “natural born Citizen” for support for his decision which did reach the merits of that very question? The answer is that he simply cannot. There simply is nothing in the Hollander case that properly and legally supports the merits decision made by Judge Gibney on the question of what is a “natural born Citizen.” A decision on standing does not provide any merit substance as to the meaning of an Article II “natural born Citizen.” Hence, Judge Gibney’s reliance on Hollander for the merits of his decision is error.

(6) As we can see, the Court in Tisdale simply cited to some cases which do not support its holding. In my article entitled, All That Is Wrong with Georgia State Judge Michael M. Malihi’s Decision that Putative President Obama Is a “Natural Born Citizen” , published on February 3, 2012 at http://puzo1.blogspot.com/2012/02/all-that-is-wrong-with-georgia-state.html., I showed how Georgia State Court ALJ, Michael Malihi, did not engage in any real analysis of the “meaning of a “natural born Citizen,” but rather just relied upon the erroneous definition of a “natural born Citizen” pronounced by the state case of Ankeny, and not that confirmed by our own U.S. Supreme Court in Minor v. Happersett in 1875. With Tisdale, again we see a court not engaging in its own thoughtful and reasoned analysis of the historical and legal meaning of a “natural born Citizen.” What is worse, it even ascribes to the cases is cites legal positions that the cases did not hold. No court seems to want to just do its own in-depth study of the meaning of a “natural born Citizen.” Rather, what we see with our courts is their citing one case for a proposition on the meaning of a “natural born Citizen” that does not exist in that case and then other later case citing those cases for that same proposition which only perpetuates the errors. In all this, the only case which serves as the anchor in all this manipulation is Wong Kim Ark, and as I have shown, the case does not stand for the proposition for which the courts are citing it.

As we can see, there are no current court cases, including Ankeny v. Governor of Indiana and Tisdale, which have convincingly shown through real historical and legal analysis that any child born in the United States, without any reference to the child’s parents’ citizenship, is a “natural born Citizen.” As hard as the courts continue to try, they just cannot seem to be able to shake off the “natural born Citizen” clause. Maybe it is because the Founders and Framers are still holding on to it for dear life. Hence, the law of nations and traditional U.S. Supreme Court American “common-law” definition of a “natural born Citizen,” which Minor in 1875 directly and Wong Kim Ark in 1898 indirectly confirmed, i.e., a child born in the country to citizen parents, stands. Anyone who wants to change it needs to either go to the U.S. Supreme Court or have a constitutional amendment passed to accomplish that.

In the meantime, Obama is building his string citation (a statement containing numerous cases by name and brief description which supports one’s legal position) of court wins. But as the old saying goes, it is not the quantity, but the quality that counts. Regardless of the number of cases that Obama can put into his sting citation, they are all based on an erroneous understanding of Wong Kim Ark. As I have shown, that case does not stand for the proposition that a child born in the United States, without reference to the child’s parents’ citizenship, is a “natural born Citizen.” Rather, the Court’s holding is limited to declaring a child born in the United States to domiciled alien parents is a Fourteenth Amendment “citizen of the United States.” There is nothing in the case which justifies extending the Court’s holding to include a “natural born Citizen.” We saw right in Article II, Section 1, Clause 5 that a “Citizen of the United States” is no longer eligible to be President. Rather, only a “natural born Citizen” is so eligible. Hence, Wong Kim Ark’s holding, which only goes to defining a “citizen of the United States” and not a “natural born Citizen,” cannot be used to establish anyone’s eligibility to be President.

Having shown that the Tisdale decision does not adequately answer the question of whether Obama is a “natural born Citizen,” let us consider what type of U.S. citizen Obama is. Let us assume for sake of argument that Obama was born in 1961 to a British citizen father and U.S. citizen mother, neither of whom were diplomats or military invaders. Under those facts, Obama would be a “citizen of the United States” under the Fourteenth Amendment and 8 U.S.C. Sec. 1401(a). In today’s vernacular which is not constitutional language, he would be called a “native born” citizen which is what he called himself during his 2008 presidential campaign. This modern-day (post Wong Kim Ark) “native born” citizen is not to be confused with a “native or natural born citizen” as used in natural law, the law of nations, and American “common-law.” Note that Article II, Section 1, Clause 5 uses only “natural born Citizen,” a word of art, an idiom, with a long ago, well-established specific definition, and this is the only clause that can be used when referring to the eligibility requirements to be President.

Before the Fourteenth Amendment and Wong Kim Ark, under the original Constitution as intended by the Founders and Framers, all our Congressional naturalization acts, and U.S. Supreme Court case law, Obama, born to a British citizen father and U.S. citizen mother, would have been an alien. Actually, upon his mother’s marriage to her British citizen father, the mother would herself have become a British subject. So Obama would have been born not only to one but to two alien parents. Regardless of whether it was one or two alien parents, Obama would have been born a British citizen. Hence, Obama would have been born with double allegiance which the Founders, Framers, and Congress did not permit. Under these birth circumstances, he surely was not in the eyes of the Founders and Framers, Congress, and the U.S. Supreme Court, a “natural born Citizen.”

It is only through Wong Kim Ark–which judicially naturalized Wong to be a “citizen of the United States” under the Fourteenth Amendment by finding that his alien parents’ domicile in the United States created enough allegiance although just local and temporary (that they were subject to the laws of the United States while physically present in the country) which the Court said caused Wong to be born “subject to the jurisdiction” of the United States–that Obama if born in the United States can today be recognized as a “citizen of the United States.”

Wong Kim Ark recognized the double allegiance created in Wong by being born to alien parents and by allowing him to be a U.S. “citizen.” Still, the Court, because of its concern that so many children and adults then living in the U.S. would be considered aliens, was willing to find Wong to be a Fourteenth Amendment “citizen of the United States.” Needless to say that such policy decisions belong to Congress and not the judicial branch of government. At least Wong Kim Ark, notwithstanding its sweeping change of citizenship law in the United States through judicial naturalization, did not go so far as to hold that Wong was an Article II “natural born Citizen.” On the contrary, Wong Kim Ark recognized the difference between a “natural-born citizen” child born in the United States to citizen parents and a “citizen” child born in the United States to alien parents. Wong Kim Ark cited and quoted the American “common-law” definition of a “natural born Citizen” which Minor had confirmed in 1875. Wong Kim Ark therefore accepted that definition and did not disturb it. This means that with the time-honored American “common-law” definition of a “natural born Citizen” never having been amended by constitutional amendment, Congress (not to imply that it could), or U.S. Supreme Court decision, today a “natural born Citizen” is a child born in the country to citizen parents. This is the legally-recognized consensus definition of an Article II “natural born Citizen,” confirmed by both Minor and Wong Kim Ark. Since Obama was born to an alien father, he cannot satisfy the “citizen parents” prong of this definition. Obama is therefore, if born in the United States, a judicially naturalized Fourteenth Amendment “citizen,” created by positive law (the Fourteenth Amendment and 8 U.S.C. Sec. 1401(a)) other than strictly American “common-law.” He is not an Article II “natural born Citizen,” created by natural law and positive law which became the law of nations and which the United States adopted as its American “common-law.” Not being a “natural born Citizen,” Obama, like Senator Marco Rubio and Governor Bobby Jindal (both born in the United States, but not to U.S. citizen parents), is not eligible to be President and Commander in Chief of the Military.

So, assuming that Obama was born in the United States and that at the moment of his birth his father was an alien and his mother was a U.S. citizen, Obama is a “citizen of the United States” by virtue of the rule of decision of the first clause of the Fourteenth Amendment which is a positive law, but not by virtue of the rule of decision of natural law and the law of nations which is what defines an Article II “natural born Citizen,” and which rule Minor v. Happersett in 1875 confirmed was adopted as American “common-law.” Article I, Section 8, Clause 10 of the Constitution and early decisions of our U.S. Supreme Court, including Minor, and lower courts show that this “common-law” became part of Article III “Laws of the United States.” This is the legally-recognized consensus definition of an Article II “natural born Citizen.” This definition is the status quo. If Obama does not like this status quo, let him take his battle to court to see if ultimately the U.S. Supreme Court will agree or disagree with him.

Mario Apuzzo, Esq.
February 16, 2012
http://puzo1.blogspot.com/
####

Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved