Reality Check Radio – Foggy and Professor Kuck

Tonight’s show

Foggy will call in to discuss his appearance on Professor Charles Kuck’s “Immigration Hour”. We have a few developments in Birtherstan, too. For instance, Rep. Jeff Duncan told Rick Wiles that Congress should investigate Obama’s fake identification papers.

18 thoughts on “Reality Check Radio – Foggy and Professor Kuck

  1. Article II left to Congress the role of defining citizenship, including citizenship by reason of birth.
    Rogers v. Bellei , 401 U.S. 815, 828 (1970).

    Am I reading this correctly: “US citizenship by reason of birth, is defined by Congress, or the plenary authority of government”?

    ex animo
    davidfarrar

  2. Am I reading this correctly: “US citizenship by reason of birth, is defined by Congress, or the plenary authority of government”?

    Citizenship by reason of birth (Jus Sanguinis) falls under the naturalization powers. Surely you must have read US v Wong Kim Ark where the court laid out this.?

    No, by birth is not referring to Jus Soli. Read the cases I have documented on this site.

  3. @NBC.

    Yes, but either way: jus soli or jus sanguinis… it’s still citizenship by reason of birth; is it not?

    ex animo
    davidfarrar

  4. @NBC,

    Read it…I am quoting from it:

    “Article II left to Congress the role of defining citizenship, including citizenship by reason of birth…Rogers v. Bellei , 401 U.S. 815, 828 (1970)”

    “…including citizenship by reason of birth.” So is it your contention that “citizenship by reason of birth” is the same as an Art. II, §1, cl. 4 natural born Citizen, and that Congress should have the power to decide this change this term (i.e., the qualifications of the President and the Vice-President of the United States), or should it be We, the People?

    ex animo
    davidfarrar

  5. You are quoting from Robinson who references Rogers v Bellei…

    It was handed down yesterday in Robinson v. Bowen. The key language (paragraph break added):

    Article II states that “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.” Article II left to Congress the role of defining citizenship, including citizenship by reason of birth. Rogers v. Bellei, 401 U.S. 815, 828 (1970). Many decades later, the Fourteenth Amendment set a floor on citizenship, overruled the Dred Scott decision, and provided that all born or naturalized in the United States, and subject to the jurisdiction thereof, were citizens. Nonetheless, subject to the floor of the Fourteenth Amendment, it has always been left to Congress to define who may be a citizen by reason of birth (or naturalization proceedings, for that matter). Id. at 829–30.

    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. [Footnote: United States v. Wong Kim Ark, 169 U.S. 649, 687 (1898) (“The words ‘in the United States, and subject to the jurisdiction thereof,’ in the first sentence of the fourteenth amendment of the constitution, must be presumed to have been understood and intended by the Congress which proposed the amendment … [as] the converse of the words ‘out of the limits and jurisdiction of the United States,’ as habitually used in the naturalization acts.”)]

    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. 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.

    Understanding requires a bit more than looking at snippets of text.

    The ruling is poorly argued, ignores the actual findings in Rogers v Bellei which shows that citizens born abroad to citizen parents are naturalized citizens, but sadly enough, noone really had properly argued that perspective.

  6. So is it your contention that “citizenship by reason of birth” is the same as an Art. II, §1, cl. 4 natural born Citizen, and that Congress should have the power to decide this change this term (i.e., the qualifications of the President and the Vice-President of the United States), or should it be We, the People?

    Congress gets to decide who in the end is eligible and who is not, and in some circumstances, the Court may become involved, but unless Congress would find a person born abroad to two citizen parents to be ineligible, the case will not likely be heard before a court.

    Similarly, We the People get to decide who we want to be our next president.

    And finally, if we find it important to clarify the natural born citizen requirement, or remove it as it is quite outdated, then We the People will be part of the Constitutional Amendment process.

    But ‘We the People’ typically does not get to decide issues of law, or policy directly. Thank goodness for that.

  7. @NBC,

    I appreciate your efforts here in helping me to clear this point up, but I want you to follow me carefully here: this isn’t about choosing our next president. This is about who should create the qualifications of the presidency and vice-presidency? After all, if you can change the qualifications for the presidency and vice-presidency, you can, in large measure, control who We, the People, decide who we want to be our next president. And, unless I am mistaken, you, and the courts, have clearly said: it should be Congress and not We, the People, if you insist that US citizenship by reason of birth is an Art. II, §1, cl. 4 natural born Citizen.

    ex animo
    davidfarrar

  8. And, unless I am mistaken, you, and the courts, have clearly said: it should be Congress and not We, the People, if you insist that US citizenship by reason of birth is an Art. II, §1, cl. 4 natural born Citizen.

    I am not sure what you mean by We, the People… In our nation, we elect our officials. The House and Senate determine the eligibility of its members, and are part of the Presidential elections.
    I am not sure why you are so focused on changing the qualifications either…
    At the moment the qualifications include natural born, a somewhat outdated concept, which requires the person to have been born on soil under jurisdiction.

    As to your mumblings about We, the People, we continue to be part of all this through our electoral system.

    I fail to see your problems here, the Founders decided that it was best left to the voters, the electoral college and Congress to elect our President.

    I still fail to see what you are so worried or concerned about…

  9. I apologize if my mumblings aren’t clear. After all, the US Constitution was written so an ordinary man in the street, with common sense, could understand it and support and abide by it, as a US citizen.

    The question is straight forward; who has the power to create the qualifications of the president and vice-president, the two highest political offices in the land: Congress or We, the People?

    “If Article II left to Congress the role of defining citizenship (Rogers v. Bellei, 401 U.S. 815, 828 (1970), Congress can change the definition of an Art. II, §1, cl. 4 natural born Citizen simply by changing the definition of a US citizen at birth; could they not?

    ex animo
    davidfarrar

  10. The question is straight forward; who has the power to create the qualifications of the president and vice-president, the two highest political offices in the land: Congress or We, the People?

    If you believe some, they would argue that Congress can use its plenary powers under the naturalization clause, to extend citizenship at birth to anyone it likes, by using a statute. Some have argued, and I believe incorrectly, that this meets the NBC standard. I believe that NBC remains constrained to those born subject to our jurisdiction by virtue of birth on our soil.

    But you really need to read ROgers v Bellei as it reaches the opposite conclusion by pointing out that there are those born on soil and those naturalized. So it is not Rogers v Bellei you should focus on but the limited ruling in Robinson v Bowen which has no precedential value.

  11. After all, the US Constitution was written so an ordinary man in the street, with common sense, could understand it and support and abide by it, as a US citizen.

    I am not sure the common/ordinary man could have fully understood the Constitution but I accept your position only sofar as it does not involve defining terms left undefined. For that we should look at our common law history.

    I do agree with you that people born abroad to citizen parents under congress’s naturalization powers means that congress could change who is eligible and thus I personally reject the conclusion that citizenship at birth, not to be confused with by birth, makes one a NBC

  12. @nbc, June 26, 2013 18:21

    I have taken your advice and have taken a closer look at (Rogers v. Bellei, 401 U.S. 815, 828 (1970), which is based on § 301(b) of the Immigration and Nationality Act of June 27, 1952, 66 Stat. 236, 8 U.S.C.§ 1401(b). Section 301(a) of the Act, 8 U.S.C. § 1401(a), according to the syllabus at Justia.com The fact that the Rogers v. Bellei case involves a question of US citizenship overseas, is irrelevant to my point: Congress has full authority under Article I, section 8, clause 4 of the US Constitution to make any kind of US Citizen it feels it needs, even US citizens by reason of birth, save one: an Art. II, §1, cl. 4 natural born Citizen. The fact that Rogers v. Bellei , 401 U.S. 815, 828 (1970) states that “Article II left to “Congress” the role of defining citizenship, including “citizenship by reason of birth”, cannot possible include an Art. II, §1, cl. 4 natural born Citizen because you and I both know and have so agreed, only We the People can affect the qualifications of the President and Vice-President of the United States, not Congress, nor the 14th Amendment.

    ex animo
    davidfarrar

  13. You are just making things up. No court nor any founder every said that Congress couldn’t expand who is natural born through naturalization, so it is clearly an open question. If Parliament could make natural born subjects through its naturalization power, why wouldn’t the founders think Congress could? Any honest person understand they were following English law.

    I tend to agree with NBC that the bulk of evidence suggests that people naturalized at birth were not considered natural born in the founding period, however, after 1795, no statute purported to make them natural born like the English statutes did. Thus, it is clearly an open question from an historical point of view as to the power of Congress in this area, a question complicated by confusion in the founding period about the status of analogous statutory natural born subjects in England. Thus, it is silly to simply proclaim such things as only We the People can make natural born citizens. You have simply made up your own rules in your head and, like all birthers, are not interested in actual history or legal precedent..

  14. You have simply made up your own rules in your head and, like all birthers, are not interested in actual history or legal precedent..

    It’s often tempting when looking for confirmation to ignore the parts that are not supporting our beliefs.

  15. because you and I both know and have so agreed, only We the People can affect the qualifications of the President and Vice-President of the United States, not Congress, nor the 14th Amendment.

    The (14th) Amendment can do anything it wants as it is an amendment to our Constitution.
    But the 14th Amendment merely was declaratory of our Common Law, which considered anyone born on soil, subject to our jurisdiction, to be a natural born citizen and leaving the citizenship of others to statutes under the naturalization powers granted to congress.

    We the People is such a meaningless term. We the People elected our President. We the People elected congress who qualified our President, We the People are bound by our Constitution.

    The suggestion that ‘We the People’ are the only way natural born citizenship can be granted requires a bit more than just hand waving.

    As Ballantine has shown, there are no judicial rulings which preclude Congress from extending natural born citizenship by statute, even though both logic and history would make such an argument less than straightforward.

    I personally do not believe that it logically speaking makes sense that Congress can extend and narrow the group we consider to be natural born, through mere statute, however as far as I can tell, the court has remained somewhat vague in this area, other than the finding in US v WKA that the status of children born abroad to US citizen parent(s) is not covered by common law but rather by statute.

  16. Did David really fall for this spoof? Squeeky Fromm rocks…

    Yes he did

    Well, I have to say it, I took the bait, hook, line and sinker, plus rod & reel and the last addition of Field & Stream on this one.

    Oh the power of confirmation bias… ROTFL… So gullible… I have no idea why anyone would believe Harvard would award Mario Apuzzo anything…

    Needless to say Mario’s ‘ideas’ were fully briefed to the Supreme Court in US v Wong Kim Ark after the lower court had rejected them. The Supreme Court agreed that jus sanguinis never had been part of US common law and was instead handled by statute.

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