“Natural Born Citizen”≠ “Citizen” –
It seems that some in the public have fallen prey to the media’s assertion/implication that if Obama was born in Hawaii then of course he is a “natural born citizen”. No so.
Mario Apuzzo gives a complete analysis of the misconceptions.
Monday, November 30, 2009
There are some blogs that are citing the case of United States v. Low Hong, 261 F.73 (5th Cir. 1919), http://books.google.com/books?id=lnU4AAAAIAAJ&dq=%22Low%20Hong&as_brr=1&client=firefox-a&pg=PA73#v=onepage&q=&f=false, as the latest word on what a “natural born Citizen” is. Their position is that this case proves that a child born in the United States even to alien parents is a “natural born Citizen.” The issue that was before the Fifth Circuit Court of Appeals was whether a petitioner was entitled to be discharged from immigration custody on his habeas corpus petition when he showed that the government was holding him in custody pending a deportation hearing before the Secretary of Labor (who handled immigration matters then) under the Immigration Act, § 17 (Comp. St. 1918, § 4289 1/4ii), and other sections relating to excluding and deporting persons from the country, which is expressly applicable only to aliens. Affirming the judgment of the district court which granted the petition and his release, the Court held that since the government had admitted that the petitioner was a citizen (which the government did not), it could not hold him in immigration custody and had to release him.
Low Hong alleged in his amended habeas petition that he was born in the United States and that he was a citizen thereof. The government did not deny his allegation that he was born in the United States. But it also did not admit that he was a citizen. The government’s position was that there was no factual dispute and that the case dealt with only a legal question as to petitioner’s citizenship which was not properly before the Court on a habeas corpus petition which it said petitioner filed prematurely. The Court ruled that the government did not dispute that petitioner was born in the United States. It therefore also ruled that the government admitted petitioner was a citizen. The Court also ruled that the statute allowing excluding and deporting aliens applied only to aliens. The Court found that the government’s admission that Low Hong was a citizen was also an admission by the government that he could not be held in immigration custody pending a deportation hearing before the Secretary of Labor. The Court said that since the government admitted Low Hong was a citizen, the Secretary of Labor had no jurisdiction or authority to detain him in immigration custody pending his deportation hearing. Low Hong therefore had to be released.
There are two errors with the Low Hong decision. First, the government never admitted that petitioner was a citizen. Rather, it only admitted that he was born in the United States and took the position that the status of his citizenship was “nothing but a question of law” yet to be decided. While the decision does not make any mention of petitioner’s parents, they were probably Chinese aliens who could not naturalize in the United States because of the Chinese Exclusion Act of 1882 (among other things, made Chinese immigrants who were in the United States permanent aliens by prohibiting them from becoming citizens through naturalization) which were not repealed until the 1943 Magnuson Act which permitted Chinese who were already in the United States to naturalize and thereby become United States citizens under the Fourteenth Amendment. We also do not know if petitioner’s parents met the same factual scenario as did the parents of Wong Kim Ark in United States v. Wong Kim Ark, 169 U.S. 649 (1898) (the Court decided the case based only “upon the facts agreed by the parties” and that the “necessary effect” of its decision was to declare “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 domicile 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”). Id. 169 U.S. at 705. Hence, the Court on its own took the conceded fact that the petitioner was born in the United States and added that the government also conceded that he was a citizen.
The second error that the Court made is in declaring the petitioner a “natural-born citizen” on the record that it had before it. In Low Hong, the issue was not whether the petitioner was an Article II “natural born Citizen.” Rather, the issue was whether he could be held in immigration detention pending deportation if he was an admitted citizen as the Court perceived the government to have conceded. The Court in dicta then said that “[t]he averments of the amended petition show that the appellee is a natural-born citizen of the United States,” citing United States v. Wong Kim, 169 U.S. 649 (1898). The reference to “natural-born citizen” was dicta because the question of whether Low Hong was a “natural born Citizen” was not before the Court. Without any opportunity for the government to even address the issue, the Court concluded that Low Hong was a citizen because the government did not contest the petitioner’s allegation that he was born in the United States. Low Hong only needed to be a born United States citizen under the Fourteenth Amendment or some Congressional Act to avoid detention and deportation. There was no need for Low Hong to also be declared an Article II “natural born Citizen.”
The Low Hong Court’s citing Wong Kim Ark also does not make the decision a precedent for the meaning of Article II “natural born Citizen.” Wong Kim Ark, also presented with a person born in the United States to alien Chinese parents, did not declare Wong a “natural born citizen” but rather only a “citizen” of the United States under the Fourteenth Amendment. The Wong Kim Ark Court never connected Wong’s citizen status to an Article II “natural born Citizen.” The Court also did not say that there was no difference between a Fourteenth Amendment born citizen and an Article II “natural born Citizen.”
The Low Hong Court did not explain what made Low Hong a “natural born citizen” as opposed to just a plain “citizen” which is what he alleged in his amended habeas petition. Hence, the Court’s gratuitous statement that Low Hong was a “natural-born citizen” was not only not addressed by the parties or analyzed in any way by the Court but also has no basis in law or fact. In Low Hong, the Court did not even perceive citizenship to be in issue. We surely cannot use the decision for any precedent on the meaning of an Article II “natural born Citizen.” Its conclusory statement regarding Low Hong being a “natural- born citizen” is therefore not binding on any court.
The Constitution, Congressional Acts, United States Supreme Court decisions, and the Fourteenth Amendment itself also show that the Low Hong court was wrong in declaring the petitioner a “natural born Citizen.” We cannot reasonably deny that the Constitution makes a distinction between a “citizen” and a “natural born Citizen.” Article II itself, in specifying the eligibility requirements, clearly spells out that there is a difference between a “citizen” and a “natural born Citizen,” for the former was grandfathered eligible to be President up to the time of the adoption of the Constitution and the latter represented the new standard for Presidential eligibility for births after the adoption of the Constitution. The “Citizen” grandfather clause is now obsolete. The Constitution at Article I, III, IV and at Amendment XI, XIV, XV, XIX, XXIV, and XXVI also mentions “Citizen” and not “natural born Citizen.” Hence, the only place that the Constitution refers to a “natural born Citizen” is in Article II, Section 1, clause 5.
Even Congress, throughout our history has distinguished between a “Citizen” and a “natural born Citizen.” ….Continue Reading
I urge everyone to read Mario Apuzzo’s explanation in its entirety.
CitizenWells gives a concise summary of the issues that need be addressed by America’s Court system if Americans can continue to have faith that no one is above the law and Constitution.
Article II, Sec. 1, cl. 5 of the US Constitution
“No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President. . .”
From the 20th Amendment to the US Constitution.
“or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until
a President shall have qualified;”
December 1, 2009
Attention: Congress, Courts, Media
It is not a conspiracy theory. Using the term “birther” in a condescending, Orwellian manner to discredit decent, hard working Americans who believe that the US Constitution is the law of the land, will not be tolerated.
1. Barack Obama has employed a legion of private and government attorneys to prevent revealing his country of birth. Innocent and eligible persons seeking the office of president do not do that.
2. Barack Obama’s father was a citizen of Kenya and a British citizen. “natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution” was explicitly written to deal with the issue of foreign allegiances at the time of the writing of the US Constitution.
3. Barack Obama’s citizenship and allegiance was further tainted when he was adopted by his stepfather Lolo Soetoro and Obama became an Indonesian citizen.
4. Some combination of the above allowed Obama to travel to Pakistan in 1981 when travel there was restricted to US citizens.
5. The only document presented by the Obama camp is a Hawaii COLB. There has been no substantiation that it is authentic and it does not establish country of birth. As Lou Dobbs stated, “It is a piece of paper that refers to another piece of paper.”
6. All other documentation, all school records, that would establish country of birth have been kept hidden and restricted.
7. No authentic documentation has been presented to establish that Barack Obama was born in the US.
8. The records of all hospitals in Hawaii have been searched. There is no record of Stanley Ann Obama ever having given birth to a child.
9. Barack Obama’s paternal grandmother in Kenya has stated on multiple occasions that she was present at Obama’s birth in Mombasa.
10. Others have stated, including multiple family members, officials and press, that Obama was born in Kenya.
This has been presented in a manner that a fifth grader can understand. However, if you have any questions, please contact me on this blog.
Failure to learn more about and understand this critical issue and take appropriate measures can only be construed as apathy, ignorance or having an un American agenda. This includes the Mainstream Media and the Fox network.
This is not a fringe movement. It’s the Constitution, stupid.
Many of those alarmed by the constitutional crisis created by Barack Obama’s avoidance of proof of eligibilty are in the US Military….
It is this last sentence should cause any judge worth his/her salt to step up to the political heat and allow the facts to be established in an open court. Our military is fighting in Iraq and Afghanistan while Obama has spent the last several months dithering. What kind of Judge could allow reasonable doubts to remain in the minds of our soldiers concerning the possibility of following “unlawful orders”?