The Perfect Case September 28, 2009
Posted by Exploring the Natural Born Citizen Clause in Citizenship, Jus Soli, Natural Born.trackback
From our friends at Politijab
I can envision the PERFECT case to address the issue of “natural born” citizen in the appropriate context -i.e., distinguishing between natural born and naturalized. The PERFECT case would have something like the following facts.
* * *
After a historically horrendous terrorist attack on the United States, an enemy fighter is captured in the region where the group responsible for the attack resides, during a battle between US soldiers and the enemy (identified as the group responsible for the attacks). This enemy fighter is designated as an “enemy combatant.”
He (or, to be precise, his (foreign) father) thereafter challenges his “enemy combatant” status on the grounds that he is a (natural born) citizen (i.e., a citizen by birth, rather than a naturalized citizen whose post-citizenship actions may “strip” him of his US citizenship). Because this captured enemy soldier is a (natural born) citizen, he argues, he is entitled to the Constitutional due process protections afforded US prisoners.
He is deemed a (natural born vs. naturalized) US Citizen because he was born here while his parents, two Saudi nationals, were in Louisiana on a work visa, which expired shortly after his birth, whereupon he returned to Saudi Arabia as a toddler (where he was a citizen by virtue of his parents’ citizenship) and never returned to the US.
* * *
I mean, how much more ‘perfect’ of a case/set-up can be imagined????? How many (US) Americans (typically more focused on outcome than analysis) would not support a decision finding that a foreign enemy fighter, who was captured while battling US troops, was not, in fact, a citizen because, e.g., neither of his parents were US citizens/both of his parents were foreign nationals; or because he (and/or they) were not subject to US jurisdiction; or because he was a dual citizen at birth who returned to his home country; or any other of a number of reasons ????
And. Yet. When presented with this exact case, along with multiple amici briefs* filed making the above arguments, seeking overturning of Wong Kim Ark and its progeny, the US Supreme Court declined to change the rules.
- *See, e.g., Eagle Forum Hamdi Amicus Brief; and Claremont Hamdi Amicus Brief
The case was Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Instead of using this “perfect opportunity” to overrule Wong Kim Ark and/or narrow the rules re: birthright (natural born) citizenship, the Court stated simply (without analysis) that Hamdi was a citizen, entitled to protections under the Constitution. In dissent, Scalia referred to Hamdi as a “presumed American citizen.” Thomas’ dissent assumed, without expressly saying, that Hamdi was a US citizen (by stating that Hamdi was, arguably, entitled to Constitutional due process protections).
My view is that if the Court declined to take up the issue of (natural born) citizenship in the above context, there is no way that it is ever going to take up the issue in the context of a duly elected President.
