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Just the same, Elliott's brief is not rooted in the academic summaries

I agree, however, they also do not get to the direct point and skip over critical language of the 1790 statute. We know that Cruz relies on this 1790 Act of Congress and the following parsed section that statute...

“...: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States”

So they say, see, Cruz's father was a resident in the US before moving to Canada. But is this what the law really says? for context we must include the opening of that section...

” And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States:...”

The statute is specific, it is referring to children born abroad of parents, both of whom are US citizens. As Scalia would say, ‘How absurd to think that the US government would have authority to make as it's citizens, children born to aliens in a foreign country’. And so then we must go back just a bit further where the statute reads...

” And the children of such person so naturalized, dwelling within the United States, being under the age of twenty one years at the time of such naturalization, shall also be considered as citizens of the United States.”

Clearly the statute is speaking strictly of parents who are citizens, not parents who are aliens. The right of citizenship never descends until the parents themselves become citizens, and citizenship follows that of the husband/father respectively.

Yes the briefs touch upon Bellei, however, they never directly make the distinction that in both cases, the father is an alien who temporarily resided in the US prior to the child being born abroad, which the 1790 Act of Congress never addresses. They go directly to expatriation without having ever resolved why it even pertains to the case. So, wouldn't it have been prudent to bring in the historical evidence from the Library of Congress that from 1790 to 1952 women and children followed the nationality of the husband/father respectively, rather than arguing against academic advocacy pieces that the Cruz briefs relied upon? Wouldn't it have been better to leave the majority of the rebuttal to those pieces to oral arguments and spent more time fine tuning their own argument based on the plain language of the Constitution and the statutes at large?

When I read the Bellei opinion, I find it fascinating and brilliant in its language & construct. Clear, concise and to the point and shouldn't these opinions be used as examples of how briefs should be constructed? Should not the lesser arguments (lengthier rebuttals to opposition briefs) be left to footnotes & oral arguments?

I think the 1790 act is a diversion, and one easily disposed of (if it is brought up) by reference to its own language (shall be considered as being used to draw a legal equivalence, not make a definition), and noting that in Rogers v. Bellei and all other cases that note the 1790 act, treat it as an act of naturalization.

Bellei's father never resided in the US, plus, that should be irrelevant as it wasn't Bellei's father's citizenship that (in combination with the 1952 Act) produced Bellei's US citizenship. At the time of the 1790 act, the only parent who could transmit citizenship was the father, which is why no act until 1934 would have been of any use to Bellei.

All that said, there is no way to predict how any given individual will come to the conclusion that born abroad is alien, unless a statute covers the person. I think the constitution (14th amendment) plus Bellei, plus Wong Kim ark is the most direct route. Bellei notes the 1790 Act, but doesn't spend much time dissecting it, and doesn't appear to need to dissect it. SCOTUS, in 1971, said that a person born abroad is, if a citizen, a naturalized citizen. If that person was not a naturalized citizen, they could not be denaturalized, and expatriation follows a totally different line of cases.

But, other people obsess over the 1790 statute, and see it as a definition rather than a vehicle for creating a legal fiction of citizenship even though born an alien.

The plaintiff, complainant, objector doesn't get to see the opponents arguments in advance, and the usual process allows the plaintiff a rebuttal to the defendant. Funny thing in these cases is that the defendant (Cruz) never addresses the complaint head on - he make arguments along totally different lines.