Territory-born Tulsi Gabbard Can Be President – Here’s Why!

Tulsi Gabbard “natural born citizen” POTUS eligible – Here’s why!

U.S. military veteran, Member of Congress from Hawaii, presidential candiate,Tulsi Gabbard, was born in the tiny overseas island territory of American Samoa.  Americans born in that territory have U.S. nationality but not citizenship.  The local government and people so far have not petitioned Congress for U.S. citizen status.  But those born there to a U.S. citizen parent acquire parental citizenship at birth. That means Tulsi Gabbard is a “natural born citizen” just as eligible to be President as every American President born after the U.S. Constitution was adopted in 1789.
By Howard Hills

Don’t ask courts to answer political questions

Puerto Rico is one of four U.S. territories where Congress has granted U.S. citizenship at birth, qualifying our fellow Americans in those territories as “natural born citizens” eligible to serve as President.

American Samoa is a special case, and so is Tulsi Gabbard! She acquired citizenship at birth not due to place of birth but U.S. citizenship of a parent.

One may support Gabbard’s ambitious White House bid or not. The question addressed here is whether citizens who are in many cases denied equal civil rights under territorial status also should be denied one of the rights secured under the Constitution for all who acquire citizenship at birth.

In Gabbard’s case that includes eligibility to serve as President. Yet, opportunistic journalists once again are relying on self-promoting legal scholars craving media attention to shamelessly hype “birther” nonsense about any presidential candidate not born in a state of the union.

There seems, however, to be no legal basis for claims Americans born outside the fifty states to U.S. citizen parents can’t serve as President. Accordingly, Gabbard’s candidacy does not as some so-called “experts” assert present an “unsettled constitutional question” that can only be decided by the U.S. Supreme Court.

When all else fails, instead of obsessing over fabricated “birther” hysteria, voters should empower themselves by actually studying their Constitution.

Understanding constitutional and statutory birthright citizenship

Not every provision of the U.S. Constitution needs to interpreted by a U.S. Supreme Court ruling to know what it means. If the court does rule on the meaning of constitutional text that becomes law, but the nation need not dither ambivalently over constitutional mandates until the court intervenes.

If otherwise resolved to act according to a clear idea about what text means, the Congress, President, states and people should use tools the Constitution gives us to carry on the work of making the union more perfect.

That is true with regard to the “natural born citizen” criterion in the Presidential Qualification Clause in Article II, Section 1 of the Constitution. The idea this applies exclusively to persons born in a state of the union is historically and constitutionally far-fetched.

That’s because the phrase “natural born citizen” does not refer to place of birth. Rather it refers to acquisition of citizenship under U.S. law applicable to the totality of circumstances under which a person is born.

When the Constitution was adopted, that left it to Congress to define by federal statute the criteria for acquisition of national citizenship at birth. The range of relevant criteria included place of birth, citizenship of parents, state citizenship, or other circumstances at the time of birth.

Those born and acquiring citizenship in a foreign country or who otherwise did not acquire U.S. citizenship at the time of birth under U.S. law also could acquire U.S. citizenship as permitted by Congress under immigration and nationality statutes enacted pursuant to the Uniform Naturalization Clause in Article I, Section 8 of the Constitution.

The exclusive power of Congress over national citizenship ended after the American Civil War in 1868 when the 14th Amendment was ratified and adopted under Article V of the Constitution. Our country then had a constitutionally defined national citizenship at birth, generally although like the Bill of Rights not absolutely beyond the reach of Congress to regulate, as long as the right is not impermissibly infringed upon.

Section 1 of the 14th Amendment includes the National and State Citizenship Clause conferring the right to our nation’s citizenship at birth on persons born in a state of the union, as well as equal rights of state citizenship in any state of the union in a citizen chooses to maintain legal residence.

However, the constitutional guarantee of national and state citizenship under the 14th Amendment did not extinguish the power of Congress under the Uniform Naturalization Clause to confer U.S. citizenship for persons who do not acquire it by birth in a state.

Congressional measures allowing statutory birthright citizenship outside the states evolved over time, and now includes citizenship at birth under federal nationality statutes for children born outside a state of the union to a U.S. citizen parent.

In addition to birth overseas to a U.S. citizen parent, federal law conferring birthright citizenship outside the fifty states also includes citizenship at birth in most but to all U.S. territories, as may be provided by Congress under federal territorial statutes.

Of course, the 14th Amendment also confers national and state citizenship on non-citizens who are “naturalized” in a state of the union under federal immigration and nationality statutes enacted by Congress under the Uniform Naturalization Clause in Article I, Section 8. But this is not citizenship at birth, so it does not constitute natural born citizenship or satisfy the criteria for eligibility to serve as President.

Citizenship at birth is natural born citizenship

In order to be elected and serve as President, U.S. citizenship must have been acquired when born as a result of –

Birth in a state under the National and State Citizenship Clause of the 14th Amendment
National citizenship acquired by statute at birth overseas to a U.S. parent
National citizenship based on birth in a U.S. territory under federal territorial statutes

In all three cases birthright citizenship under federal law means you are qualified consistent with the “natural born citizen” criteria and eligible to be President of the United States.

You can count on that, unless and until five judges on the U.S. Supreme Court rule otherwise. That means the high court would have to rule U.S. citizenship at birth under U.S. law that qualified a succession of Presidents before 1868 somehow no longer constitutes “natural born citizenship” after all.

That would mean only 14th Amendment citizenship based on birth in a state would satisfy the Presidential Eligibility Clause in Article II, Section 1 of the Constitution. Children born to U.S. citizen parents over seas could never be President.

If that were the case then 1964 Republican nominee Senator Barry Goldwater, born to U.S. citizens in the territory of Arizona, was not eligible. Nor was 2008 Republican nominee Senator John McCain, born to parents on military deployment in the Panama Canal Zone.

Same for Mexican born 1968 GOP presidential candidate George Romney, father of 2012 candidate Mitt Romney, as well as 2012 short list candidate for the Vice President slot on the ticket, Puerto Rico Governor Luis Fortuno. Unlike Gabbard who lives in Hawaii and can vote for herself, as a resident of a territory Luis Fortuno could be elected and serve as President but could not vote for himself.

Tulsi eligible as any past candidate, nominee, President

Gabbard became a U.S. citizen at birth in the U.S. territory of America Samoa to U.S. citizens parents. The fact that Congress has not yet conferred U.S. citizenship at birth in American Samoa is irrelevant.

That is because her U.S. citizenship was derived at birth under federal law not from the place where she was born but from parental U.S. citizenship status. Only birthright citizenship under the 14th Amendment is based exclusively on place of birth (i.e. in a state).

Citizenship at birth under federal statute can be on other criteria, including U.S. citizenship of a parent and/or place of birth being U.S. territory not within a states. The term “natural born citizen” can be thought of as being “naturalized” by the constitution or by statute at birth.

Barrack Obama was eligible to be President based on his mother’s citizenship, even if it had turned out he was born in Kenya or anywhere else outside the USA. If anyone had ever actually tampered with his birth certificate because they thought it was a problem if he was born overseas, they were acting based on bad legal advice!

Ironically, as a matter of record Obama was born in Hawaii less than two years after its U.S. territory status ended and it became the 50th state in 1959. So as a matter of record he acquired birthright citizenship under the 14th Amendment.

Had Hawaii still been a territory instead, he would have been eligible to be President both because his citizenship was derived from his U.S. citizen mother and Congress had granted statutory birthright citizenship in the territory that was his birthplace.

Pandering to “birther” political illiteracy

On December 16, 2018, the Honolulu Star Advertiser ran an article alleging Gabbard’s “birthplace” created an “unsettled constitutional question” about her eligibility to serve as President.

On January 11, 2019 BuzzFeed News fed the bogus buzz about Gabbard’s so-called birthplace problem, asserting the birther syndrome “absolutely” would become a “political issue” if she becomes a “major candidate.”

The BuzzFeed News article strays off topic promoting discussion of a controversial solution where there is no problem. Specifically, the BuzzFeed News writer touts the arguments of those in American Samoa who so far have failed to convince their own territorial government it should ask Congress to confer statutory U.S citizenship at birth to American Samoa, as it already does in Puerto Rico, Guam, Mariana Islands and Virgin Islands.

Until now American Samoa prefers greater autonomy from Washington, and there is concern U.S. citizenship would bring federal political and legal intrusions and a larger footprint by Congress in the islands. The BuzzFeed article also gives a leg up to the small minority in American Samoa who have endorsed automatic citizenship at birth in the territory, including a few federal lawsuit litigants asking the federal courts to impose U.S. citizenship if Congress won’t.

American Samoans are U.S. “nationals but not citizens,” and can apply and receive U.S. citizenship with fully equal rights upon establishing residence in any state. So far federal courts have rejected lawsuits by a few American Samoans seeking application of the 14th Amendment to all U.S. territories. That would mean permanent supremacy of U.S. sovereignty a law, extinguish the right of self-determination on other status options, without a promise or commitment to future statehood or even integration into an existing state.

This call for a change of status by judicial edict strikes people who actually know the issues as odd, since Congress for decades gladly would grant birthright statutory citizenship if asked. In addition, even if U.S. citizenship was granted by Congress or the courts, like all citizens in all territories the people of American Samoa would still be denied equal voting rights for representation in Congress and the Electoral College when back home note territory.

That’s because the rights of democratically elected representation at the federal level are allocated only to U.S. citizens residing and eligible to vote in a state under Article I, Section 2 and Article II, Section 1 of the Constitution.

Finally, BuzzFeed News implausibly compares Gabbard’s status to that of Republican SailauTimoteo, who was disqualified from being a candidate running for Hawaii State Legislature because she is an American Samoan born U.S. national but not citizen. Hawaii state law requires U.S. citizenship to serve in the Legislature, and all Timoteo had to do was apply for U.S. citizenship and she would have been eligible for state office.

Timoteo insists she is in the same status as Gabbard because they had the same birthplace. It seems state candidate Timoteo does not understand that Gabbard’s citizenship is not based on birthplace but citizenship of at least one parent, whereas both of Timeteo’s parents are non-citizen nationals.

That is why Americans born outside states should not rely on journalists or underemployed law professors exploiting “birther” mania for legal advice on eligibility to be elected to state or federal office.

Howard Hills is a former U.S. Navy JAG counsel on territorial law for President Reagan, serving in the Executive Office of the President, National Security Council and U.S. Department of State. He is author of Citizens Without A State, with foreword by former U.S. Attorney Richard Thornburgh

15 Comments

Luis Arroyo

The BuzzFeed are complete idiots!

“Until now American Samoa prefers greater autonomy from Washington, and there is concern U.S. citizenship would bring federal political and legal intrusions and a larger footprint by Congress in the islands.”

There is NO PRESENT “GREATER AUTINOMY”.

American Samoa, along with PR,USVI,Guam, & NMI all fall equally under Congress’ supreme Territorial Clause.

They’re all UNINCORPORATED US TERRITORIES , have ZERO sovereignty & all their legislative powers are derived not from the local people (local 10th ammendment sovereignty) ,but by statutory Congress decree.

“Congress’ footprint” will never be as big as it is today!

howard.hills@me.com

Your point is well taken legally, except that the same must be said of all unincorporated territories. Being a US citizen in Puerto Rico and a US National in AS are legally indistinguishable. However classified you don’t get to vote in federal elections for equal representation in Congress and Electoral College. The difference is that US citizens in unincorporated territories get full equal status by moving to state and nationals must apply for full citizen after moving to states. Beyond that AS tends to be left alone by Washington in ways that matter locally. Mostly not meddling in communal land ownership and system of customary rule by chiefs. But you are right power of Congress is plenary and there is no legally binding autonomy and political could be taken away. As with all territories whatever happens next should be with consent of governed through self determination. Thanks for you comments.

Luis Arroyo

The Buzz Feed writer is so desperate to disqualify Gabbard, he LIES TO HIS AUDIENCE by claiming Congress currently has limited involvement in American Samoa.

Congress’ powers over American Samoa (AS) will NEVER be greater than now. Congress has supreme power over AS under the US Constitution’s Territorial Clause.
AS is an unincorporated US territory with ZERO sovereignty of own.
To say US citizenship would bring an Uninvited intrusion of u.s. laws by Congress and a bigger footprint is a flat out lie and deception to make gabbard and Samoans appear as foreigners.

It’s unacceptable

howard.hills@me.com

You are missing the point entirely. First, this article seeks to confirm that Gabbard IS QUALIFIED to serve as President under the natural born citizenship clause. Not sure why you can’t seem to get that. Secondly, it is clear that Congress has plenary power over unincorporated territories can take away by statute anything given by statute, and so any delegated powers of local sovereignty are by permission not by right and can be rescinded any time. But the fact that Congress retains all residual power constitutionally is a different subject than this discussion of the fact that Congress has not exercised its power in AS in all the same ways it has in other territories, and the people in AS seem to be careful about what they ask and do not ask of the US to ensure that balance of power by Congress remain as it is unless the people vote to change it. True, Congress can change it without a vote of the people, but we are talking here about local and federal political decisions not whether the legal power exists in Congress to change the status quo. Third, the whole purpose of this essay to establish that the nationals of AS are not foreign and have essentially the same status as citizens in the other territories. If anyone is upset about that it should be citizens in the other territories who have been brainwashed they have more rights than nationals in AS. Not true. Citizens in other territories have more rights only when they move to a state, and nationals have to apply for citizenship after they move to a state to get equal rights. You might want to clam down and think about whether we are doing our best to find common ground instead of dividing every issue as us against them.

Luis Arroyo

The BuzzFeed article LIES & hides the fact AS HAS NO AUTONOMY as an unincorporated US territory.

The recent “Sanchez vs Valle” decision in SCOTUS enforced the supremacy of Congress over the US territory of Puerto Rico. It determined PR had NO sovereignty or autonomy other than allowed by congress.

“Until now American Samoa prefers greater autonomy from Washington, and there is concern U.S. citizenship would bring federal political and legal intrusions and a larger footprint by Congress in the islands.”

There is NO PRESENT “GREATER AUTINOMY”.

American Samoa, along with PR,USVI,Guam, & NMI all fall equally under Congress’ supreme Territorial Clause.

They’re all UNINCORPORATED US TERRITORIES , have ZERO sovereignty & all their legislative powers are derived not from the local people (local 10th ammendment sovereignty) ,but by statutory Congress decree.

“Congress’ footprint” will never be as big as it is today!

Teddlybar

There’s one minor problem with the author’s story … Neither the US Supreme Court nor the US Courts of Appeals agree with the author’s assessment of what constitutes a Natural Born Citizen.

In the US v Wong Kim Ark, Judge Gray, writing the majority opinion states in part, “A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, … by authority of Congress, exercised … by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens …” That statement clearly indicates that children of citizens who are born outside US Territory, who gain their citizenship by Congressional statute are naturalized. In other words, simply having citizen parents isn’t enough to make a natural born citizen!

That position was further affirmed by the US Courts of Appeals in the cases of Zimmer v. Acheson and Wong Kam Wo v. Dulles, among others. In both of those cases, the Court states that citizenship that is wholly statutory is a form of naturalized citizenship. Tulsi Gabbard’s citizenship is statutory by virtue of her having citizen parents. Her citizenship is derived wholly from 8 USC 1401(c)

Furthermore, birth on American Samoa isn’t considered US soil for 14th Amendment purposes. In the case of Rabang v. Immigration and Naturalization Service (1994) decided in the US Court of Appeals, Ninth Circuit, “We now hold that birth in the Philippines during the territorial period does not constitute birth “in the United States” under the Citizenship Clause of the Fourteenth Amendment, and thus does not give rise to United States citizenship.”

Birth in a US territory does NOT constitute birth in the US for 14th Amendment purposes.

Despite the author’s insistence to ignore what our Courts say, if there’s a Constitutional question, then Article III Section 2 of the Constitution says “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact…” In short, The United States Supreme Court is the one body Constitutionally empowered to determine what’s Constitutional in our system of government.

So what does the Supreme Court have to say about natural born citizenship? Chief Justice Waite delivering the unanimous opinion of the Court in the case of Minor v. Happersett observed, “…it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens . . .” Simply put, a natural born citizen is one who is born in the United States to citizen parents.

Every instance I’m aware of in which the Supreme Court has either indicated someone is a natural born citizen of a nation/state or eligible to hold the office of President of the United States, notably Ann Shanks in the case of Shanks v. Dupont, Kwock Jan Fat in the case of Kwock Jan Fat v. White, Marie Elg and “young” Steinkauler in the case of Perkins v. Elg, and by implication, Virginia Minor in the aforementioned case of Minor v. Happersett, have been instances in which the person referred to by the Court was one who was born in the country to parents who were citizens.

No, Tulsi Gabbard is not Constitutionally eligible to be either President or Vice-President of the United States.

howard.hills@me.com

This “legal” analysis is so confused and misdirected it raises a question as to whether its purpose is to divert attention from the real issues. First of all, citing Wong Kim Ark to argue that children born outside a state are naturalized under immigration law and not natural born is misleading and, frankly, it’s nonsense. In that case the child was born in a state to foreign born parents who were not naturalized. Second, there is no assertion in the Gabbard article that she has 14th Amendment constitutional citizenship at birth. She has statutory U.S. citizenship at birth conferred by Congress in the exercise of its powers under Article I, Section 8, Clause 4. See, U.S. Code, Title 8, Sec. 1401(e). Persons who acquire U.S. citizenship at birth under this section include those born in AS to a U.S. citizens parent. If one of Gabbard’s parents was a U.S. citizen then she acquired U.S. citizenship at birth in AS. If neither of her parents had been U.S. citizens or either had had been a U.S. national she would have been a national but not citizen under 8 USC 1408. Third, persons born in U.S. territories under 8 USC 1402-1408 or an “outlying possession” of the U.S. (i.e. American Samoa) under 8 USC 1401(e) do not need to apply for naturalization under U.S. Immigration and Nationality Act. See, the U.S. Supreme Court ruling in the case of Gonzalez v. Williams, 192 U.S. 1 (1904), which held that persons born in U.S. unincorporated territories are not aliens for purposes of U.S. immigration laws. By federal statute they are either nationals or citizens “at birth” and have all the rights, privileges and immunities of national citizenship while living in the United States, including the rights that citizens have in the states or the less than equal rights that citizens and national have in the territories. Again, the exception is that nationals at birth who reside in a state must apply for citizenship to have equal rights in a state. Four, the U.S. Supreme Court has never been asked or had to rule on whether a person who acquired U.S. citizenship “at birth” in a territory under federal law is a “natural born citizen” because there has never been anyone who claimed otherwise who successfully challenged the qualifications of such a citizen to run for President or Vice President because they were not born in a state. That included Barry Goldwater and John McCain. The foregoing is the reason why Barrack Obama would have been qualified as a natural born citizen eligible to be President even if he had been born in Kenya as may claimed. As long as his mom spent the required period of time in the U.S. before her 18th birthday as required by 8 USC 1401 in 1960 when Obama was born, then he was eligible. Accordingly, the fact that the source of this comment on the article concerning Gabbard chose to submit the comment anonymously causes one to wonder if it was intended to confuse rather than clarify issues. Since anonymous comments are permitted it was the right of the author to do so, but having that right certainly does not make the legal analysis right!

Teddlybar

No one is arguing that Tulsi Gabbard isn’t a citizen at birth. The point I was trying to make, without turning it into an essay that for most people is TLDR, is that our higher courts have consistently indicated that citizenship that is wholly statutory is a form of “naturalized” citizenship. Tulsi Gabbard’s citizenship is wholly statutory. As such, she’s a “naturalized” citizen. Unless you’re going to argue that a natural born citizen and an naturalized citizen are the same thing, she’s not Constitutionally eligible to be either President or Vice-President.

Your reference to the Gonzales case merely proves my point. Those born in Puerto Rico acquire US citizenship at birth by virtue of current statutory law (8 USC 1402) As such, their citizenship is wholly statutory and consequently, is a form of “naturalized” citizenship as pointed out by Justice Gray in the Wong Kim Ark case, Judge Phillips in the 1951 case of Zimmer v. Acheson, and Judge Hamley in the 1956 case of Wong Kam Wo v. Dulles.

My reference to the 1994 case of Rabang v. INS also serves to point out that those born in US territories don’t receive US citizenship under the 14th Amendment’s citizenship clause. Consequently, in order for someone born in a US territory to acquire citizenship at birth, then said citizenship *must* come from the application of statutory law. That is the case with Tulsi Gabbard. As pointed out previously, her citizenship is wholly statutory. As such, her citizenship derives from Congress’ Article I Sec. 8 powers which *only* grant “naturalized” citizenship.

howard.hills@me.com

Why this comment is incorrect and misleading, and why Tulsi Babbard is a natural born citizen qualified to be President:

It is incorrectly asserted that all general categories and forms of statutory citizenship conferred by Congress under Art. I, Sec. 8, Cl. 4 of the U.S. Constitution constitute forms of “naturalization,” and as such constitute a class of citizenship different than “natural born citizenship,” as that term is used for the narrow purpose of presidential qualification under Art. 2, Sec. 1.

What the commentator really meant is that only 14th Amendment citizenship based on birth in a state can be natural born citizenship under Art. 2, Sec. 1 of Constitution. But because there is no basis in federal law or court rulings for that assertion, the point is made obtusely based on obscure rulings in cases that do not define natural born citizenship for the purpose of Art. 2, Sec. 1.

To deconstruct this fallacy, it is foundational that before adoption of the 14th Amendment there was no form constitutionally defined or conferred citizenship. That is WHY the 14th Amendment was adopted!

But until the 14th Amendment was adopted all citizenship was statutory. That includes birthright citizenship, aka citizenship conferred by statute at birth.

If statutory citizenship conferred under Art. I, Section 8, Cl. 4 is “naturalized” citizenship as that term is used in this misleading commentary, and applying that label to statutory citizenship at birth means it does not constitute natural born citizenship under Art. 2, Sec. 1, then all Presidents between Tyler and Lincoln were not qualified to be President.

Conversely, since all Presidents born after 1789 who served before the 14th Amendment was adopted in 1868 were qualified based on statutory birthright citizenship and/or documentary evidence thereof deemed sufficient under federal law, it follows that statutory birthright citizenship conferred under Art. I, Sec. 8, Cl. 4 after the 14th Amendment was adopted also constitutes natural born citizenship for purposes of Art. 2, Sec. 1.

That is because the 14th Amendment did not repeal Art. I, Sec. 8, Cl. 4 or limit the power of Congress to confer birthright citizenship on persons not born in a state under the 14th Amendment. That includes birth outside a state to a U.S. citizen parent as provided by Congress under 8 USC 1401.

That in turn also includes 8 USC 1401(e) as it applies to Tulsi Gabbard. The fact that children born in America Samoa to non-citizen national parents are nationals not citizens is irrelevant, Since one of her parents was a U.S. citizen, Tulsi acquired U.S. birthright citizenship.

So, if we adopt the confused terminology employed in the commentary at issue, then, yes, natural born citizenship and naturalized citizenship can be the same thing. Birth in a state under the 14th Amendment is not the only way to acquire birthright citizenship under federal law.

That is so for the very reason it would be an unintended consequence in establishing constitutional citizenship in 1868 to prevent Congress from ensuring under Art. I, Sec, 8, Cl. 4 that the child of a U.S. parent born outside the U.S. could not serve as President.

Under the commentator’s misguided scenario a child with statutory birthright citizenship labelled “naturalized” would have to apply for “naturalization” to acquire citizenship. That would make federal law conferring citizenship “at birth” meaningless. In reality such children are legally U.S. citizens at birth.

So in the sense misleadingly used in the flawed commentary, the term “naturalized” applies to the acquisition of citizenship under federal law in all circumstances and forms. Yet, that term is incorrectly used as if applying only to acquisition of birthright citizenship other than under the 14th Amendment.

To the contrary, if “naturalized” applies to statutory birthright citizenship under Art. I, Sec. 8, Cl. 4 in the case of a child born to U.S. citizens serving in the U.S. military overseas, it also applies to citizenship based on birth in a state under the 14th Amendment.

Before we decipher obscure content of any more confused judicial dictum from mostly irrelevant court cases, the commentator might want to refer to some other sources, including the following U.S. Department of State Foreign Affairs Manual, Volume 8, Part 101:

8 FAM 101.1-2 INTRODUCTION TO CONSULAR REPORTS OF BIRTH ABROAD
(CT:CITZ-1; 06-27-2018)

a. Form FS-240, Consular Report of Birth Abroad of a Citizen of the United States of America, is a formal document certifying the acquisition of U.S. citizenship at birth by a person born abroad to a U.S. citizen parent(s). Under U.S. law (22 U.S.C. 2705) it is proof of U.S. citizenship—in legal terms, it establishes a “prima facie case” of U.S. citizenship. Records of the issuance of form FS-240 are maintained in the Passport Information Electronic Records System (PIERS) feature. Vital Records in PIERS are proof of U.S. citizenship and may be accessed by consular officers and passport specialists for emergency verification of citizenship. (See 7 FAM 1300 Appendix I.)…

e. The form FS-240 is not a birth certificate, such as is issued by a government-authorized bureau or office of vital statistics, because consular officers are not authorized to assume a foreign local or state vital statistics function. The form FS-240 is a consular declaration of the fact of acquisition of U.S. citizenship at birth based upon:

(1) The certification of, or attestation to, the facts of birth by a legally authorized local official in the place where the birth occurred;

(2) The affidavit executed by the parent(s) or legal guardian(s) or other evidence regarding the physical presence of the U.S. citizen/national parent(s), or in the case of two citizen parents, residence, necessary to transmit U.S. citizenship/noncitizen nationality to the child;

(3) Evidence of the physical relationship between the U.S. citizen and the child;

(4) Evidence of the legal relationship between the U.S. citizen and the child, such as proof of the U.S. citizen/national parent(s)’s citizenship and marriage or for births out of wedlock, legitimation in accordance with Section 309 INA (8 U.S.C. 1409) or predecessor statute, and an affidavit of parentage and financial support if the child is born out of wedlock to a U.S. citizen father;

(5) Evidence of citizenship/nationality of the U.S. citizen/national parent(s); and

(6) Consular adjudication of the child’s claim to U.S. citizenship.

howard.hills@me.com

The artful dodger strikes again. This is just an interim response because the comments above do exactly what the writer stated would not be done, which is to create a narrative of confusion about the law. To clear the air before writing a serious reply to this unserious white noise pseudo-legalism a few territory technical points need to be made.

First the 1898 case of Wong Kim Ark is cited by this writer to assert among other things that American Samoa is outside the jurisdiction of the United States. Really? In addition to being obviously wrong since the America flag flies over AS and the U.S. Constitution is the supreme law, that argument to the contrary is a 14th Amendment argument in Wong Kim based on the jurisdiction sub-clause in the birthright citizenship clause. The jurisdiction question was easily confirmed in the case and subsumed by the court’s ruling in Wong Kim Ark that birth in a state is required for 14th Amendment birthright citizenship.

Wong Kim Ark simply does not rule on the constitutional meaning of “natural born citizen” under Article II, Section 1, generally and specifically as applied to statutory nationality or citizenship at birth in a U.S. territory to a U.S. parent.

Now the writer admits as we have stated from the beginning that the 14th Amendment citizenship test is irrelevant, and the writer even seems to understand that the U.S. exercises sovereignty and jurisdiction over American Samoa as a U.S. territory.

But this commentator continues to cite cases that rule on birth in a foreign country versus birth in a state, not a territory in which Congress has provided for statutory citizenship at birth to a U.S. parent in 8 USC 1408. Instead the moving target quasi-legal diatribe seeks to turn around the Gonzales v. Williams case we cited correctly as authority for the court’s ruling that persons born in unincorporated territories are not aliens for purposes of naturalization. That is why American Samoans who move to a state apply for citizenship as nationals not aliens.

Ignoring the legal meaning of Gonzales the writer argues that it somehow confirms citizenship under 8 USC 1402 for Puerto Rico is statutory and thus a form of naturalization. What?

We never asserted otherwise, but the real point for readers to understand is that the discussion of 8 USC 1402 citizenship in Puerto Rico in the context of the Gonzales case is simply incoherent. There was no 8 USC 1402 citizenship at birth when Gonzales was decided, the Puerto Ricans were not U.S. citizens at the time, but nationals under Gonzales. The writer ignores the fact the 8 USC 1402-1408 are a later statute Congress passed decades after Gonzales.

On the basis of this tortured logic the writer seeks to shift the focus away form the simple fact that Congress specifically provided for at birth citizenship in American Samoa derived from U.S. citizenship of either parent. Again, none of the cases cited address in the ruling whether there is any nexus to the what “natural born citizenship” means. We only found one reference to “natural born citizenship” in any of the cases cited, and it was not a part of the ruling but discussion that had nothing to do with Art. II, Sec 1 and qualification to serve as president.

Thus, this diversionary and distracting logic is either intentional or incompetence.

All the writer’s argument means is that Gabbard was not born in a state, and without a single case on point it s asserted that Congress can not by statute create citizenship at birth under the uniform naturalization clause in Art. I, Sec. 8, Cl. 4, that constitutes natural born citizenship under Article II, Section 1.

Game on. Actually, this is a great opportunity, We have been looking forward to this issue for years. Expected it to be raised more artfully by a worthy adversary in a real court case. The problem is a serious constitutional lawyer would not make this argument, at least not believing it true.

But an un-artful anonymous and befuddled argument has come along and will have to do.

For now, suffice to say nothing writer argues has anything to do with the facts and law related to Gabbard’s eligibility to run for President.

Thus, this reply responds only to the expressed intention not to burden readers with a technical legal discourse. But then highly technical cases are cited that are not relevant and mislead readers.

The choice for readers should be between reasoned legal analysis or just not bothering with this rehashing of irrelevant cases, rather than a choice between not bothering to pierce the veil of legal confusion, or being misled.

howard.hills@me.com

Tulsi Gabbard is a birthright citizen under federal law.

As such her right to run for President is equal to all other birthright citizens.

It is a misconception to believe that there is only one source of birthright citizenship under federal law that satisfies the “natural born citizen” presidential qualification clause in Art. 2, Sec. 1 of the U.S. Constitution.

There are two sources of birthright citizenship that constitute natural born citizenship. The original source that remains a source of birthright citizenship today is Article I, Sec. 8, Cl. 4, which empowers Congress to adopt nationality law for Americans born and inking in the states, and to provide for non-citizens to be “naturalized” as U.S. citizens.

The second source added later is the 14th Amendment, Section 1 of which makes birthright citizenship a right that can be acquired by being born in a state.

However, Section 1 of the 14th Amendment also recognizes that Congress continues to have the power to confer birthright citizenship and make both nationality law and naturalization law under Art. I, Sec. 8, Cl. 4 of the Constitution.

Some lawyers and even judges sometimes get confused and think birthright citizenship under the 14th Amendment based on birth in a states has become the only source of citizenship that satisfies the natural born citizenship clause in Art. 2, Section 1.

But Congress still grants birthright citizenship by statute to all children born outside a state to U.S. citizen parents, currently under Tiltle 8 United States Code Section 1401.

Congress also confers birthright citizenship on persons born in Puerto Rico, Guam, Virgin Islands and Mariana Islands, based on place of birth under U.S. jurisdiction but outside a state (8 USC 1402-1407).

The piece published here on March 19 about Gabbard’s candidacy was not a political endorsement. It was a case study on territorial law and policy. I assume the editors accepted it for publication as part of PRR’s public education mission.

What motivates me is that denial of the right of a birthright citizen from one territory to run for President could lead to denial of of the rights of other birthright citizens from other territories to run for President.

The idea that only birthright citizens who were born in a state and acquired citizenship at birth under Section 1 of the 14th Amendment can run for President is simply wrong.

Accordingly, for the benefit of readers who are interested in going deeper into the history and development of relevant law, here is some critical thinking about the issues raised on Gabbard’s candidacy.

The hope is that what follows will inform readers in evaluating what is written and spoken by and about the candidates:

Anatomy of an argument to disqualify a presidential candidate –

This addresses arguments challenging Tulsi Gabbard’s right to run for president.

These arguments opposing Gabbard’s candidacy were posted at Puerto Rico Report (PRR) during the week of August 1.

That was the same period public response to Democratic Party debates getting national coverage were determining which candidates would be eliminated under party rules.

In a seemingly cogent but substantively garbled anonymous “legal” opinion challenging legitimacy of Gabbard’s candidacy, following assertions were made

“…our higher courts have consistently indicated that citizenship that is wholly statutory is a form of ‘naturalized’ citizenship. Tulsi Gabbard’s citizenship is wholly statutory. As such, she’s a ‘naturalized’ citizen. Unless you’re going to argue that a natural born citizen and a naturalized citizen are the same thing, she’s not Constitutionally eligible to be either President or Vice-President.”

The maxim that it can take many words to dispel confusion created by a few words applies here by orders of magnitude.

However, in fairness to the reader, let’s cut to the chase. The distilled essence of the historical and constitutional realities that clarify the recent arguments against the Gabbard candidacy are clear and compellingly simple:

· The U.S. Constitution took effect in 1789. The 14th Amendment defining constitutional citizenship based exclusively on birth in a state was not enacted until 1868. That means for 79 years the only source of U.S. citizenship was federal statutory law enacted pursuant to “Uniform Naturalization Law Clause” in Art. I, Sec 8, Cl. 4 of the U.S. Constitution.

· Whether referred to as nationality and citizenship law applicable to Americans born and living in states of the union, or immigration laws for foreign persons to become “naturalized” as U.S. citizens, under federal law all persons born in the United States after 1789 and before 1868 had statutory U.S. citizenship.

· According to those questioning Gabbard’s qualifications all statutory U.S. citizenship is “naturalization,” and naturalization is not “natural born” citizenship for purposes of the presidential qualification clause in Article II, Sec. I.

· If that were true it means that the following individuals possessing only statutory citizenship were “naturalized” and not at that time qualified to serve as President or Vice President:

John Tyler
James Polk
Millard Fillmore
Franklin Pierce
James Buchanan
Abraham Lincoln
Andrew Johnson

· After the 14th Amendment was passed, Congress retained its power under Art. I, Sec 8, Cl. 4 and adopted for enactment federal statutory law granting birthright citizenship (i.e. “at birth”) to children of U.S. citizens not born in a state, based on U.S. citizenship of a parent (8 USC 1402).

· Individuals qualified for the presidency based on this form of statutory citizenship include the following major party presidential candidates:

Senator Barry Goldwater 1964
Governor George Romney (Mitt’s father) 1968
Senator John McCain 2000, 2004, 2008
Senator Ted Cruz 2016

· Since adoption of the 14th Amendment, Congress also has granted birthright citizenship based on place of birth to children born outside a state in four U.S. territories under federal sovereignty (8 USC 1401-1407).

· Finally, although persons born under federal sovereignty in the U.S territory of American Samoa have U.S. nationality but not citizenship under federal law, the U.S. Congress approved for enactment a federal statute that confers birthright U.S. citizenship to persons born in that territory, based on U.S. citizenship of a parent (8 USC 1401(e)).

· The presidential candidate qualified by natural born citizenship conferred under (8 USC 1401(e)) is Tulsi Gabbard.

Now that her right and her legitimacy as a candidate is confirmed, let’s listen to what she has to say!

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