In the 2008 ruling in the case 567 F. Supp. 2d 1144 – Dist. Court, ND California 2008, the Court ruled against the Plaintiff Robinson, who had requested a preliminary injunction,and also denied declarative and injunctive relief due to lack of standing. In other words, the Court was not convinced that for the purpose of a preliminary injunction, Robinson had raised arguments sufficient to find that Senator McCain was not a natural born citizen. When granting a preliminary injunction, the Court is still required to reach a final determination of the merits.
The court observed that
This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen. Plaintiff has not demonstrated the likelihood of success on the merits necessary to warrant the drastic remedy he seeks.
It is, however, important to understand the circumstances under which the Court observed that
At the time of Senator McCain’s birth, the pertinent citizenship provision prescribed that “[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States.” Act of May 24, 1934, Pub.L. No. 73-250, 48 Stat. 797. The Supreme Court has interpreted the phrase “out of the limits and jurisdiction of the United States” in this statute to be the converse of the phrase “in the United States, and subject to the jurisdiction thereof,” in the Fourteenth Amendment, and therefore to encompass all those not granted citizenship directly by the Fourteenth Amendment. Under this view, Senator McCain was a citizen at birth. In 1937, to remove any doubt as to persons in Senator McCain’s circumstances in the Canal Zone, Congress enacted 8 U.S.C. § 1403(a), which declared that persons in Senator McCain’s circumstances are citizens by virtue of their birth, thereby retroactively rendering Senator McCain a natural born citizen, if he was not one already.
Robinson had argued that the term “out of the limits and jurisdiction”, excluded Children born in the Panama Canal Zone because, although born outside the geographical limits of the United States, he was born ‘under the jurisdiction’. According to the Court, the term however meant all those not granted citizenship under the 14th Amendment. Both the plaintiff and the defendants had not raised the question if such children became natural born by virtue of a statute and therefore, the Court could accept this as factual.
However, following the precedents cited: United States v Wong Kim Ark, and Rogers v Bellei, the status of such children was guided by naturalization statutes and the Court in Rogers found that the rights of the native/natural-born is coextensive with those naturalized, except that only the former are eligible for the office of the President.
The question becomes: Can Congress by mere statute extend citizenship and natural born status to those not covered as ‘natural born’ without such a statute?
Let’s take the argument to its fullest extent and assume that Congress, using its Constitutional powers to provide for uniform rules of naturalization, declares by statute that all those naturalized will become natural-born citizens at birth. Such a statute, while within the argued powers of Congress, would violate the Constitutional eligibility clause. Since it is non-controversial that Congress cannot override Constitutional requirements by mere statute, it seems logical and reasonable that Congress’s powers under the naturalization clause are limited and that they cannot change the nature of the rights of those naturalized by statute.