Posted on 07/03/2011 4:28:11 AM PDT by HMS Surprise
“Scalia is asking questions, not giving an opinion.”
That’s true but in his written concurrence in Nguyen v INS, he backed up his questions with an on the record opinion
by saying that he didn’t feel the Court had an ability to grant someone citizenship who did not get it in one of the two ways that he described in his concurrence in Miller v. Albright.
From Scalia’s concurrence in Miller v. Albright: “The Constitution ‘contemplates two sources of citizenship, and two only: birth and naturalization.’ United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898).”
Justice Scalia went on to say “I remain of the view that the Court lacks power to provide relief of the sort requested in this suit–namely, conferral of citizenship on a basis other than that prescribed by Congress. See Miller v. Albright,523 U.S. 420, 452 (1998) (Scalia, J., concurring in judgment). A majority of the Justices in Miller having concluded otherwise, see id., at 423 (opinion of Stevens, J., joined by Rehnquist, C. J.); id., at 460 (Ginsburg, J., joined by Souter and Breyer, JJ., dissenting); id., at 471 (Breyer, J., joined by Souter and Ginsburg, JJ., dissenting); and a majority of the Court today proceeding on the same assumption; I think it appropriate for me to reach the merits of petitioners’ equal protection claims. I join the opinion of the Court.”
In brief, it appears that Justice Scalia is a Wong Kim Ark guy and not a Minor v Happersett guy.
Justice Thomas joined Justice Scalia’s concurrence.
A Wong Kim Ark guy IS a Minor v. Happersett guy. The quote from WKA doesn't say there are only two "ways" to get citizenship. It says there are two "sources" of citizenship IN the Constitution. Gray first acknowledged that NBC is defined OUTSIDE of the Constitution. He cited Waite's definition of NBC from the Minor decision and affirmed that it was reliant on both jus soli and jus sanguinis criteria. The sources of citizenship IN the Constitution are from the 14th amendment and from Congress' general power of naturalization.
Here's the central question in Miller v. Albright: "The petitioner in this case challenges the constitutionality of the statutory provisions governing the acquisition of citizenship at birth by children born out of wedlock and outside of the United States." When Scalia ponders about the NBC question and says it requires jus soli, he is bringing this up because the petitioner doesn't meet this condition. He doesn't have to contemplate the citizenship of the parents in regards to NBC because they have to at least have a child born in the country first.
Only conservatives are capable of taking a machete and cutting their own throats. To make my point clear: RUBIO **IS** ELIGIBLE, except for those who believe that the Constitution is devoid of common sense. For US to disallow Rubio smacks of insanity, and a desire for self-immolation. Bob
The are eligible. They would not be the first presidents or vice presidents or candidates to have been born to non-citizen parents.
A Wong Kim Ark guy IS a Minor v. Happersett guy. The quote from WKA doesn’t say there are only two “ways” to get citizenship. It says there are two “sources” of citizenship IN the Constitution. Gray first acknowledged that NBC is defined OUTSIDE of the Constitution. He cited Waite’s definition of NBC from the Minor decision and affirmed that it was reliant on both jus soli and jus sanguinis criteria. The sources of citizenship IN the Constitution are from the 14th amendment and from Congress’ general power of naturalization.
“Here’s the central question in Miller v. Albright: “The petitioner in this case challenges the constitutionality of the statutory provisions governing the acquisition of citizenship at birth by children born out of wedlock and outside of the United States.” When Scalia ponders about the NBC question and says it requires jus soli, he is bringing this up because the petitioner doesn’t meet this condition. He doesn’t have to contemplate the citizenship of the parents in regards to NBC because they have to at least have a child born in the country first.”
If you are correct about Justice Scalia’s views, I sure wish that he would have put an Obama eligiblity appeal that preseneted the two citizen parent arguement on the “Discuss List” for one of the Certiorari conferences. Thus far, zilch.
Any Justice can put an appeal on the discuss list, otherwise the denial of cert is automatic.
I'm not saying anything specifically about Scalia's views. From the questions he was asking, he was recognizing that the persons in question (who were born outside of the United States) wouldn't be NBCs. As to whether Scalia fully understands the definition of NBC, I would say no. We have nothing to show that. By asking questions, he seemed a little unclear on it.
Any Justice can put an appeal on the discuss list, otherwise the denial of cert is automatic.
As for him putting the appeals on the discuss list, maybe he hasn't read those appeals. IIRC, not all the appeals directly or correctly addressed the two-parent argument. Even if they did, that doesn't mean the cases were able to overcome the obstacle of "legal standing." Short of that, why would a judge put such a case on a discuss list?
As for him putting the appeals on the discuss list, maybe he hasn’t read those appeals. IIRC, not all the appeals directly or correctly addressed the two-parent argument. Even if they did, that doesn’t mean the cases were able to overcome the obstacle of “legal standing.” Short of that, why would a judge put such a case on a discuss list?
Both Kerchner v Obama and Hollister v Soetoro specifically made the two citizen parent argument and asked the Supreme Court to overturn lower court rulings on standing and hear those appeals on the merits of the constitutional claims.
The SCOTUS invented the legal standing rule. It’s their baby. When a lower court denies a case on legal standing, the SCOTUS needs a compelling reason to overlook the standing argument. IIRC, both of these cases involved retired military, each trying to claim standing based on the chance of being called up by an illegal president to serve in the military. You’re supposed to have particularized harm, not something speculative. I can’t see one justice bringing such a case before the other justices on a weak claim of legal standing. I’ll try to look at these cases later, but the ones I’ve seen prior haven’t done a good job of explaining the citizen parents requirement as established in Minor v. Happersett. Usually there’s more emphasis on Vattel, which is fine, but not as compelling as the precedent in Minor.
What smacks is the lack of deference to the Constitution, and the delusion that there are only a handful of Americans capable of filling the role of President. Rubio is a great American, he is not eligible to be President. If this causes you to reject critical thinking skills, then yes, we are doomed as a nation.
Your argument, that because it has happened before, it can therefore happen again, makes no sense. . . and you know it.
Sadly, I do not think that there are many Americans capable of doing an effective job as President. I thought that George Aleen was one, but he folded under the weight of a chicken feces “macaca” attack.
I want to WIN, and my view is that the nominee, hopefully Palin, will choose Rubio and drive a stake into their hopes of a substantive Hispanic voting block leading them to victory again. The Democrats fear him as no other, I guarantee.
As I said, the Great Mark Levin is on MY side on this issue, and he is a foremost Constitutional scholar. Bob
Is that the same Levin who just recently figured out that the Constitution actually doesn’t allow for “birthright citizenship” via the 14th Amendment? Don’t get me wrong, I love Mark, listen to him daily, but lawyers are trained to make money, not understand things that only generate controversy. I am sure the Rubio would make an ideal President, and if I thought that he was our only hope I too might disregard my understanding of the term “natural-born citizen.” Thank God it’s not a problem.
I wish I had your confidence that there are plenty of good ones to choose from. I don’t see it. Bob
Your Post #144: Good point.
It is very significant that no one prior to the fall of 2008 ever made the argument that it is absolutely necessary to have two citizen parents in order to qualify for natural born status. That's why no one objected to the candiacy of Sipro Agnew, Chester Arther, and others.
The 14th Amendment makes crystal clear that being born in the USA and being under US jurisdiction at the time of birth are sufficient.
The ficticious two-citizen parent requirement was literally made up out of whole cloth by birthers when their Kenyan birth myth failed to gain any traction.
It is the narrative, and if it's settled, why are we still discussing it?
Because some people refuse to acknowledge that it is moot point....
And the rest are comfortable with their illusions.
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