Posts Tagged ‘14th Amendment’

Legislative History of INA § 301(g) Proves Mark Levin WRONG About Ted Cruz

February 6, 2016

This article was published by World Net Daily. It is an important legal memorandum and simplifies the constitutional questions of how statute affects terms of art in the original text:

Opinion: Leonard A. Daneman on Ted Cruz Eligibility

http://www.wnd.com/2016/02/ted-cruzs-eligibility-tied-to-womens-rights-movement/

Legislative History of INA § 301(g)

The Citizenship of Ted Cruz Tied to Women’s Rights Movement

[Personal Note:   Why should I care? That is the $10 Trillion Question. If the Obama presidency had been blocked by the ‘birthers,’ perhaps our National Debt wouldn’t have doubled!

My response to Ms. Clemon’s comment summarizes the legal question: “So, the question is if the Harvard article or mine is in the public interest: Does the introduction of foreign nationality to a child who claims being a natural born citizen benefit the presidency viz Article II, or the singular citizenship of a child born of two U.S. citizens as it was from the beginning satisfy the intent of the framers?”

Here is another salient point: If the nationality of the father is inconsequential, then only the citizenship of the mother matters. After all, a child of a U.S. citizen father or alien father is eligible as long as the mother was a U.S. citizen!

How about Prof. Lawrence Tribe, who put so much weight on ‘native born’ that a child of two aliens, legal or illegal, is eligible to the presidency, just as long as they were born on U.S. soil.

Modern Americans have a ‘perception’ of Naturalization; not real knowledge. When you mention naturalization, they think of a courtroom with a U.S. flag and a line of new immigrants with their right hands raised giving the oath of allegiance.

Hopefully, after you read this article  (about 1700 words) on naturalization and repatriation of married women with children, you will understand that the framers would have never intended the child of an alien father eligible to the presidency; even if a so-called ‘citizen at birth.’ Alexander Hamilton proposed a version of Article II that specified a child ‘born a U.S. citizen,’ but John Jay insisted on a ‘natural born citizen,’ which cannot be created or changed by naturalization Law.

Ted Cruz’ citizenship through his mother was created by Naturalization Law. The 1952 statute separated him from Canadian citizenship upon moving to the U.S. at age four, and repatriated him through his mother. And so he is not eligible to run for the presidency.

Naturalization laws that gave Ted Cruz citizenship rights from birth were and still can be altered and changed, man-made. However, birth from two U.S. citizen parents is outside and independent of man-made law, and therefore a ‘natural’ born citizen.]

The following shall be nationals and citizens of the United States at birth:

INA § 301 g. a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States.

Not all, but many legal professionals conclude that because Ted Cruz was a ‘citizen at birth,’ he is Article II eligible to the presidency.

However, at the time of the framers there were only four ways to become a citizen:

  1. You were a citizen of one of the states at the time of adoption of the  constitution
  2. You were born to a U.S. citizen father (more on the mother later)
  3. Your father naturalized while you were a minor child
  4. You naturalized after reaching the age of majority

Under both our First Uniform Naturalization Act of 1790 and the British Nationality Act of 1772, a child was the same foreign nationality as the father. Children were born with the father’s nationality through sanguinity, through blood, a legitimate and natural inheritance.

Now, consider this fact: That at the time of the framers and over 100-years of our history, Ted Cruz would have only become a citizen of the United States under #4 in the list above.

Based on both British and United States law, even if the mother was born a U.S. citizen, being married to a Canadian or British subject her child born in the United States would not be a U.S. citizen. And Ted Cruz was born in Canada.

So, I ask you the following:

  1. Would the framers and Article II as written and intended consider Ted Cruz a natural born citizen?
  2. Under 1930’s naturalization law, did repatriation to the United States of a mother with minor children, married to an alien father, revise Article II as written and intended? (See Intermediate Scrutiny Test)

The answer to both is ‘No.’

While naturalization law was once uncomplicated, the women’s rights movement unintentionally created a dichotomy in the legal doctrine of sanguinity, requiring an expansion of naturalization laws to deal with dual nationality at birth and repatriation.

What is Naturalization?

The Illinois Board of Elections decided that Ted Cruz was a natural born citizen. “The board distinguished between natural born and naturalized citizens, pointing out that Cruz did not have to take any steps to go through a naturalization process at some point after birth.”

By ‘process’ the board makes a common mistake, only seeing naturalization as that of an adult renouncing one citizenship (Ted Cruz renounced Canadian citizenship in 2014) and being permitted to take the Oath of Allegiance for U.S. citizenship. However, there is more to naturalization, as can be seen in the extensive body of law.

A minor’s nationality is affected by actions of parents; and which parent’s citizenship applies to the child comes under naturalization law. What happens when the child is born in another country, or to one alien parent? What happens when the child lives as one nationality, but before reaching the age of majority wishes to assume the other? This is also naturalization and includes numerous conditions and requirements as part of the legal ‘process.’

Minor vs Happersett (1875) declared, in a case involving a woman’s right to vote, it was ‘never doubted’ that the child of two U.S. citizen parents was a natural born citizen. And to this day it is still only that particular birth circumstance (even if born outside the U.S.) that produces a citizen naturally, without having to remove dual nationality of the minor with naturalization law.

The Evolution of Naturalization Law and Dual Nationality

The 14th Amendment is best-known for its ‘born in the United States’ and ‘equal protection’ clauses. However, it was written specifically for children born of freed black slaves. Because the father had no national allegiance or citizenship to confer to his children (See Dred Scott, and the 1866 Civil Rights Act) the legislature had to rely on, for the first time in U.S. naturalization law, birth on U.S. soil (jus soli).

The 19th and 20th century saw changes in the institution of marriage, racial inclusion, and legitimization of nullius fillius (children of unwed mothers) that required broader applications of sanguinity (inheritance by blood) if not a complete departure from it (1898). The application of ‘equal protection’ to sanguinity, until then only through the husband, created the previously unheard of concept of Dual Nationality.

Women’s Claims to Equal Citizenship Rights 1922-1940

Yale Law Journal Volume 123 Number 7, p. 2134-2573 ‘Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation,’ Kristin A. Collins

The reaction of some committee members to women’s claims to gender equality reveals a strong commitment to those traditional modes of regulating nationality. For example, in 1922, Richard Flournoy—then an assistant solicitor in the Department of State and later a member of the interdepartmental committee—found the idea that a married woman would maintain her American citizenship upon marriage to a foreigner “very objectionable” on the ground that it was “obviously a direct blow at the principle of family unity”—a reference to the principles of coverture[1] that resulted in women’s loss of independent civil identity upon marriage. In 1934 Congress passed a statute that gave American women the ability to transmit citizenship to their foreign-born children with no explicit racial limitations.

A Woman’s Loss of U.S. Citizenship: Laws of Coverture

Prior to modern women’s rights, when a woman married a man she assumed a subordinate legal status to that of the husband. Before today’s no-contest divorce, communal property, and intestate succession laws, inheritance laws didn’t give a woman equal rights to property; they favored the husband’s side of the family.

In the same light, if marrying an alien she lost her U.S. citizenship. So, from the time of the framers and into the 1930’s, it was understood that only a U.S. citizen husband produced U.S. citizen children, natural born through sanguinity, father and mother together.

American women who married an alien would not only lose U.S. citizenship but produce alien children (1922):

  • 369. (a) A woman who has lost her United States citizenship by reason of her marriage to an alien eligible to citizenship or by reason of the loss of United State citizenship by her husband may, if eligible to citizenship and if she has not acquired any other nationality by affirmative action, be naturalized upon full and complete compliance with all requirements of the naturalization laws, with the following exceptions: . . . (Repealed by act Oct. 14, 1940)

The 19th Amendment finally extended the vote to women in 1920. The 1922 Cable Act permitted repatriation to the United States if an American woman lost citizenship by marrying a foreigner. Her children would then gain U.S. citizenship with her. Other challenges were based on the ‘equal rights clause’ of the 14th Amendment, successfully comparing Coverture to slavery.

Over time, the legal doctrine of Coverture was finally eliminated. However, the retention of pre-marital U.S. citizenship created a bifurcated marriage, a dichotomy of nationalities requiring new naturalization laws to determine the child’s nationality and citizenship throughout the course of the marriage/dissolution, until the child reached the age of majority. In fact, Obama had three nationalities from birth to reaching adulthood.

However, to this day a ‘natural born citizen’ must be interpreted how the framers chose it to mean, and why; children of U.S. citizens without alienage had no possible foreign allegiance or affiliation. As specifically expressed by John Jay to George Washington, this was to avoid ‘foreign intrigue’ from the highest office of the land. Only a U.S. citizen ‘naturally born’ was immune from changes in naturalization law, natural law versus naturalization.

1933 Statute for Child Born Outside the United States Not a ‘Citizen at Birth’

Any 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; but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United Sates previous to the birth of such child. In cases where one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and reside therein for at least five years continuously immediately previous to his eighteenth birthday, and unless, within six months after the child’s twenty-first birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Immigration and Naturalization Service of the Department of Labor. Am. June 10, 1933, Ex. Or. 6166, § 14; and May 24, 1934, c. 344, § 1. 48 Stat. 797. [emphasis added]

The term ‘citizenship at birth’ was not yet applied in the law.

Ted Cruz was Born December 22, 1970

Finally, the phrase ‘citizen at birth’ is used in the law.

The laws grew to accommodate women giving birth to children with dual nationality; specifically the 1940 statutes were repealed and replaced in 1952, 8 U.S.C. § 1401(a)(7) [INA § 301(a)(7)] as originally enacted by Act of June 27, 1952;

The following shall be nationals and citizens of the United States at birth:

[A] person born outside the geographical limits of the United States and its outlying possessions of parents, one of whom is a non-citizen, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totally not less than ten years, at least five of which were after attaining the age of fourteen years.

That law was liberalized and codified in 1986 as INA § 301(g); 8 U.S.C. § 1401(g).

Through women’s rights and equality protection under the law, the concept of sanguinity was extended through the mother as it was, previously, only through the father; however dual nationality was a concept completely foreign to the framers and is, as you can see, the reason for the vast body of naturalization law necessary to remove any alienage created in a child at birth, or even temporary loss of citizenship due to unintentional expatriation of the mother. Only a natural born citizen, a child of two U.S. citizen parents, is immune from and undefined by naturalization law.

 

The Transition from Jus Soli — Obama NOT a Natural Born Citizen

October 18, 2011

Why Challenging Wong Kim Ark/14th Amendment Soil Citizenship is Essential, and Critical to the Question of Obama’s Article II Eligibility

Ask anyone, from average citizen to presidential candidate, and they will tell you birth on U.S. soil is all that is required to become a citizen at birth. They will also agree if you suggest that a citizen at birth is the same thing as a ‘natural born citizen.’

If pressed further, they will cite the 14th Amendment’s ‘born in the United States’ clause.

This blog article proves them WRONG.

The 14th Amendment’s “born in the United States and subject to the jurisdiction thereof” clause was adapted directly from the 1866 Civil Rights Act as applying to children of black slaves emancipated by proclamation and the successful outcome of the Civil War. As property, slaves had no nationality and therefore their children were also stateless. The 14th Amendment and the 1866 Civil Rights Act guaranteed equal rights of U.S. citizenship by recognizing children of slaves and former slaves born on U.S. soil were “not subject to any foreign power,” and therefore solely ‘subject to the jurisdiction’ of the United States.  

According to existing U.S. naturalization law, from 1790 through 1855, minor children of aliens were not U.S. citizens until their parents naturalized, i.e., renounced foreign jurisdiction over their nationality. (Citation omitted. See previous blogs for full text of law.)

However, in 1898 Wong Kim Ark misinterpreted that clause and inserted feudal English law as adjudicated in the 1608 Calvin’s Case, and practiced as a general principle by the American colonies until their First Uniform Naturalization Act of 1790 legislated in the first Congress of the United States.

The ‘soil birthright’ of citizenship declared by Wong Kim Ark (by ignoring the effect ‘under the jurisdiction thereof’ has on nationality law) created our illegal immigration and chain migration, a problem to such an extent that illegal immigration has become the de facto method of immigration. Legal immigration statistics in 2010 show only 1.04 million Legal Permanent Residents[1] on the road to naturalization. In comparison, illegal immigration has been estimated to be 13 million in 2000, increasing 500,000 annually.

Conclusion:  The Wong Kim Ark decision destroyed U.S. naturalization law through violation of constitutional law, jurisprudence, and existing legislated act, thus creating the illegal immigration problem. Chain migration out of illegal immigration is the de facto method; legal immigration practically extinct. Wong Kim Ark[2] is followed law, but invalid and must be repealed.

It is also why most Americans and ‘experts’ automatically think Obama is a ‘natural born citizen’ merely by his claim of Hawaiian birth. 

The Transition from Jus Soli

For over a century, the American colonies were limited to children born on their soil being natural born subjects under the British monarch. From ancient times, jus soli was the eternal allegiance from birth of a child to the protection, ‘within ligeance,’ of the King.

However, with the Magna Carta (1200s), permanent allegiance from birth was disavowed, and the right of children of subjects born outside British territory to be natural born British subjects children was provided by law as far back as 1350.

The 1772 British Nationality Act declared children born of British subjects outside the ‘ligeance’ of the crown be natural born subjects;[3] and that is the law that we must apply to Obama’s birth circumstances. (See quotes below on ‘originalist’ interpretation of the constitution.)

Natural Born Citizen in U.S. Law

The term of art, Natural Born Citizen, appears in the constitution once, as applied to elements of qualifications of eligibility of a presidential candidate. Similarly, the term of art appeared only once in a Supreme Court holding, defining it ‘without doubt’ as children born of two U.S. citizens.[4]

Unfortunately, the term of art ‘natural born citizen’ has become ‘idiomatic’ with a meaning diluted by both time and judicial error, as merely born in the United States. Thomas Jefferson and James Madison warned of such error:

On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed. –Thomas Jefferson to William Johnson, 1823

In a letter to Henry Lee on June 25, 1824, James Madison wrote:

. . . I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution.

Madison continued, acknowledging the “changes to which the words and phrases of all living languages are constantly subject”, he stated:

What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.

Born, or Naturalized?

Under U.S. law, a citizen at birth may be solely of U.S. citizenship (natural born citizen), or a 14th Amendment citizen at birth as interpreted by Wong Kim Ark, 169 U.S. 649 (1898). The first is a citizen born. The second is naturalized because the alien nationality of one or both parents must be removed by application of the Aliens and Nationality Act, as revised after 1855.

Nevertheless, Wong Kim Ark did not, nor could not, revise Article II’s natural born citizen clause, nor the common knowledge of the framers as to what constituted a ‘natural born citizen,’ or what laws created a British natural born subject if born on U.S. soil.

Therefore, there is no valid interpretation of law that makes Barack Hussein Obama, II a natural born citizen as intended by the U.S. Constitution, Article II, Sec. I, Clause 5.

The Civil Rights Act became a law April 9, 1866 (14 Stat. 27, c. 31), and provided:

That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.

And this was reenacted June 22, 1874, in the Revised Statutes, section 1992.

The words “not subject to any foreign power” do not, in themselves, refer to mere territorial jurisdiction, for the persons referred to are persons born in the United States. All such persons are undoubtedly subject to the territorial jurisdiction of the United States, and yet the act concedes that nevertheless they may be subject to the political jurisdiction of a foreign government. In other words, by the terms of the act, all persons born in the United States, and not owing allegiance to any foreign power, are citizens.


[2] Wong Kim Ark (1898) is followed law, but in conflict with precedent in Minor vs. Happersett  (1875) as well as legislated act, if not the 14th Amendment itself, specifically ignoring the ‘jurisdiction’ clause, and Sec. 5 reserving enforcement of provisions of the amendment by congress, not the judiciary.

[3]That all Persons born, or who hereafter shall be born, out of the Ligeance of the Crown of England, or of Great Britain, whose Fathers were or shall be, by virtue of a Statute made in the Fourth Year of King George the Second, to explain a Clause in an Act made in the Seventh Year of the Reign of Her Majesty Queen Anne, for naturalizing Foreign Protestants, which relates to the natural-born Subjects of the Crown of England, or of Great Britain, intitled to all the Rights and Privileges of natural-born Subjects of the Crown of England or of Great Britain, shall and may be adjudged and taken to be, and are hereby declared and enacted to be, natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions, and Purposes whatsoever, as if he and they had been and were born in this Kingdom . . .” British Nationality Act, 1772, 1772 (13 Geo. 3) C A P. XXI

[4] “This is apparent from the Constitution itself, for it providesthat “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,” and that Congress shall have power “to establish a uniform rule of naturalization.” Thus new citizens may be born or they may be created by naturalization.

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.” Minor vs. Happersett, 88 U.S. 162 (1875)

Safe City Strike Force must Comply with 4th Amendment Principles

June 21, 2011

Update August 18, 2013:   Because of being unconstitutionally deprived of my property, i.e., my photography studio and residence, I tried to apply for relocation compensation under Albuquerque Housing Ordinance. The incompetent agent from St. Martin’s Hospitality denied my timely and modest claim . . . the City of Albuquerque had ZERO enforcement or appeal . . . or counseling for tenants suddenly displaced and ESSENTIALLY HOMELESS.

True, the City did provide vouchers for hotel rooms, but in this case chose a flea-bag motel that had been a haven, for over a decade, for drug abusers, strippers, and wanderers who had fallen through the cracks of society . . . no home, no ID.

One tenant did avail himself of the voucher. On 05-05-2011 I discussed the motel and asked what his experience was. He said, “Disgusted,” and that “This chick was all lit up on drugs.” He stayed only one night.

Overview:  The Lowery case involves properties where drugs, drug use, and drug labs were found during lawful searches. (A link to the 71-page Lowery order for Summary Judgment is at the end of this blog. However, the PDF pages are slightly out of order, 1, 10, 11 – 19, 2, 3 . . .)

However, the ordinance, as drafted by City Attorney office employee Joe Martinez, allowed inspectors to go further than the Drug Lab Enforcement protocols and allow even one-time drug use evidence to deem the property ‘substandard’ and vacated immediately upon threat of misdemeanor trespass.

When questions arose if the law was being abused, or misinterpreted, inspectors were said to have been advised to list drug use evidence under unsanitary conditions.

The Safe City Strike Force vacated a large downtown Albuquerque office building under the ‘life safety’ provisions, refusing to allow the owner to make reasonable repairs to conditions existing from as long ago as World War II . . . and some committed without permit by a now seated Appellate Court Justice, the former building manager and LLC member.

The 1st District Federal Court has determined that the Albuquerque Safe City Strike Force has been violating property owner and tenant 4th Amendment Rights. The option to file an Appeal noted in the Notice & Order (of code violations and vacating of property) is insufficient Due Process. Following is a link to the March 31, 2011 Memorandum and Order written by Justice Browning. CIV 09-0457

In addition, a higher standard of exigency is demanded prior to warrantless evictions, i.e., immediate threat to life safety . . . not some supposed injury possible if certain events occur. Example: A light switch without a plate is a life safety concern, but only if someone actually sticks their finger in it.

AUGUST 22, 2013 MOTION FOR RECONSIDERATION IN THE 2ND JUDICIAL DISTRICT COURT

(Following the Motion for Reconsideration is the Brief I wrote for the Lowery case, a victory for victims of the Safe City Strike Force in the Federal Court)

 I.    COURT OMITTED REVIEW OF ‘UNCLEAN HANDS’

The court held that it will respect the discretion of the lower court in awarding reasonable court costs, especially in the light of alleged Plaintiff-Petitioner bad behavior.

However, because Defendant-Respondent had no affirmative defense or counterclaims, they worked at (by lying) accusing me of bad behavior, which was not true. They accused me of stalking, called the police on me, photographed me while at work in order to falsely accuse me of harassment, and called me a “sewer-sniffer” in a motion.

Therefore, it is vital the court reviews Plaintiff-Petitioner’s application of the ‘Unclean Hands Doctrine.’ Plaintiff-Petitioner argues he does have ‘clean hands,’ Defendant-Respondent does not.

[D]efenses cannot be successfully asserted, however, if the defendant comes to court with unclean hands. The Texas law on the doctrine of unclean hands is well developed. An equitable defense cannot be used to reward inequities nor to defeat justice. Westworth Village v. Mitchell, 414 S.W.2d 59, 60 (Tex.Civ.App.–Fort Worth 1967, writ ref’d n.r.e.). Under the doctrine of unclean hands, he who commits inequity is not entitled to equitable relief. Harris v. Sentry Title Co., 715 F.2d 941, 950 n. 6 (5th Cir.1983); Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401, 410 (1960); Cross v. Chem-Air South, Inc., 648 S.W.2d 754, 756 (Tex.App.–San Antonio 1983) (quoting Howard v. Richeson, 13 Tex. 553 (1855)); Grohn v. Marquardt, 657 S.W.2d 851, 855 (Tex.App.–Beaumont 1983 writ ref. n.r.e.). 752 F.2d 178: Regional Properties, Inc., Regional Properties of New Mexico, Inc., Kingsley Creek Inc., Jerry D.shipley and Paul E. Thomes, Plaintiffs-appellees, v. Financial & Real Estate Consulting Co. and David Goldner,defendants-appellants (Fifth Circuit, 1985)

And from the U.S. Supreme Court, in Precision Instrument Mfg. Co. vs. Automotive Co., 324 U.S. 806 (1945)

The guiding doctrine in this case is the equitable maxim that “he who comes into equity must come with clean hands.” This maxim is far more than a mere banality. It is a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant. That doctrine is rooted in the historical concept of court of equity as a vehicle for affirmatively enforcing the requirements of conscience and good faith. This presupposes a refusal on its part to be “the abetter of iniquity.” Bein v. Heath, 6 How. 228, 47 U. S. 247. Thus, while “equity does not demand that its suitors shall have led blameless lives,” Loughran v. Loughran, 292 U. S. 216, 292 U. S. 229, as to other matters, it does require that they shall have acted fairly and without fraud or deceit as to the controversy in issue. Keystone Driller Co. v. General Excavator Co., 290 U. S. 240, 290 U. S. 245; Johnson v. Yellow Cab Transit Co., 321 U. S. 383, 321 U. S. 387; 2 Pomeroy, Equity Jurisprudence (5th Ed.) §§ 397-399.

This maxim necessarily gives wide range to the equity court’s use of discretion in refusing to aid the unclean litigant. It is “not bound by formula or restrained by any limitation that tends to trammel the free and just exercise of discretion.” Keystone Driller Co. v. General Excavator Co., supra,290 U. S. 245-246. Accordingly, one’s misconduct need not necessarily have been of such a nature as to be punishable as a crime or as to justify legal proceedings of any character. Any willful act concerning the cause of action which rightfully can be said to transgress equitable standards of conduct is sufficient cause for the invocation of the maxim by the chancellor.

Moreover, where a suit in equity concerns the public interest, as well as the private interests of the litigants, this doctrine assumes even wider and more significant proportions. For if an equity court properly uses the maxim to withhold its assistance in such a case, it not only prevents a wrongdoer from enjoying the fruits of his transgression, but averts an injury to the public. The determination of when the maxim should be applied to bar this type of suit thus becomes of vital significance. See Morton Salt Co. v. Suppiger Co., 314 U. S. 488, 314 U. S. 492-494.[emphasis added]

Unclean Hands — Not only was Defendant-Respondent in violation of city building and electrical safety codes (public record and in evidence), but committed fraud (meeting the elements of conversion)[1] on the level of a 2nd Degree Felony;[2] a white-collar crime seriously defrauding approximately a dozen of their tenants.[3]

The City Attorney’s Office knows of this incident of fraud, has seen the evidence, and referred Plaintiff-Petitioner to the State Attorneys General office; an AG criminal investigation has been requested.

Defrauded Displaced Tenants Provided $8400 War Chest — If this allegation is true and the evidence submitted in pre-trial production proof in Defendant-Respondent’s own words, signed by their own hand (Exhibit N-3, attached for the convenience of the court), then Defendant-Respondent entered this law suit with an $8400 cash ‘war chest’ to fight me with lawyers (plural) charging $400/hour . . . money stolen from a fiduciary fund belonging to tenants, including Plaintiff-Petitioner.

It is plain to see that Defendant-Respondent has no counterclaims or affirmative defense[4]; and the ‘Thirty-Day Notice to Vacate’ is not only prima facie evidence that deposits were not refunded, but intentionally retained in violation of both the Housing Code and the NMUORRA.[5] Therefore, Defendant-Respondent MUST NOT be unjustly enriched an additional $3500.

Rights of Defendant Vitiated — In addition, because the lease contract was broken by Defendant-Respondent and voided by the City of Albuquerque, then Defendant-Respondent MUST NOT benefit from said voided contract; their rights in contract and statute were vitiated by negligence and fraud.

 IX.       ‘PREVAIL,’ VERSUS  ‘DEFAULT’

While current New Mexico case law makes no distinction, there is a difference between winning by default judgment and ‘prevailing’ in court; that distinction is one being a matter of rules, while the other involves a hearing on the merits.

The general policy of the Rules of Civil procedure requires that an adjudication on the merits rather than technicalities of procedure and form shall determine the rights of litigants. Las Luminarias of N.M. Council of Blind v. Isengard, 92 N.M. 297, 5878 P.2d 444 (Ct. App. 1978)

1)                        This case never went to trial. Plaintiff-Petitioner became seriously ill three weeks prior to trial and missed a pre-trial hearing the day before trial.

Recently, this court in State v. Roybal, 2006-NMCA-043, ~ 13, 139 N.M. 341 346-347, 132 P.3d 598, 603-604, [held] that a district court can rule on a motion for reconsideration following a final ruling under the common law when such a motion is not authorized under Section 39-1-1.

In that case, the state filed a motion for reconsideration of the district court’s dismissal based on lack of venue following a jury trial. Id. at 346. This Court explained that Section 31-1-1 does not apply after a case has gone before a jury; however, even though there is no rule or statutory authority expressly authorizing a motion for reconsideration after a judgment has been entered, common law supports such motions. In fact, motions for reconsideration, “are a traditional and virtually unquestioned practice and serve judicial economy by permitting lower courts to correct possible errors and thus avoid time-consuming and potentially unnecessary appeals. Id. at 347

2)                        This was not for lack of diligence. The 10th Circuit Court of Appeals produced guidelines for Default Judgment due to Failure to Appear and illness as suffered in this case, making the party diminished in capacity to the extent to be unable to perceive how seriously he was affected or respond to his difficulties, is Good Cause.

3)                         Plaintiff-Petitioner explained to the court he was not functioning, having memory and performance issues due to fever and sleep-deprivation.

4)                        Buried under 85-pages of ‘last second’ Discovery mailed to Plaintiff-Petitioner and due nine days (9) before trial (intended to overly-burden Plaintiff). Within those 85-pages was a Notice of Third Deposition, which was overlooked. (See #’s 18 and 19 of Statement of Appellate Issues, ‘Summary of Proceedings.’)


[1] According to the recent case State of New Mexico vs. Ramona Bradford, the elements of conversion are cited from Uniform Jury Instructions 14-1641 NMRA, which in this case are: (1) a market value of over [$20,000]; (2) after being entrusted with the property, the target, with fraudulent intent to deprive the owners of the property, converted it to his own use; and (3) this happened in New Mexico on or about the [3rd day of March, 2011].

[2] Fraud — NMSA 1978, 30-16-6  Rental Property Fraud — NMSA 1978, Section 30-16-40  Conversion — Conversion occurs when a person who has been entrusted with another’s property uses it for his own purposes.

[3] The exact number is not known because Defendant-Respondent repeatedly ignored or lied in Discovery requests they list all tenants displaced by the City of Albuquerque   Safe City Strike Force vacate action, even after being compelled to comply by direct court order.

[4] New Mexico Uniform Owner Resident Relations Act  § 47-8 Deposits (2) -shall forfeit the right to assert any counterclaim in any action brought to recover that deposit;

[5] 18 Ibid supra (E) Fine for non-return of Deposit per NMUORRA $250.00 (plus legal costs)

[6] 14-3-5-16  Whenever the Mayor orders that all or a portion of a residential building be vacated pursuant to this code, the owner of such residential building (the “owner”) shall pay relocation costs for the residents of such residential building who reside at the residential building when the order to vacate is issued, subject to the provisions of subsection F of this section. This requirement shall be applicable when any condition which is the basis for the order to vacate is within the control of the owner and the owner or his agent knew or should have been known of the existence of the conditions that violate applicable le codes, statutes, ordinances or regulations prior to the order to vacate. Notice of such conditions by a governmental agency responsible for the enforcement of a building, residential unit, housing or other appropriate code served on the owner or the owner’s agent shall be proof that the owner knew of the conditions.

[7] 14-3-5-16 (L): “From the time that the City first notifies an owner of conditions that violate applicable codes, statutes, ordinances or regulations to the time that the relocation assistance payments are paid to eligible residents or the time the conditions cited are corrected, the owner shall not evict, harass or intimidate any resident for the purpose of avoiding or diminishing application of this ordinance.”

[8] 14-3-1-4 ROA 1994  RELOCATION COSTS means the expenses reasonably incurred by a resident displaced from a residential building pursuant to action of the City of Albuquerque. Relocation costs shall be two thousand dollars ($2000) per family unless the resident can demonstrate special circumstances that make the relocation cost a greater amount. If special circumstances are demonstrated, relocation costs may include the actual cost of physically moving to a residential building approved by the Relocation Agency (the “replacement unit”); costs of moving to a location outside of the immediate; any security/damage deposit required by the replacement unit owner which exceed the amount of the security/damage deposit recovered from the owner of the building the resident is moving from; utility deposits and hook up cost and the rent for the first month; costs of moving back to the residential building originally vacated after housing code compliance; and any other reasonable relocation costs.

BRIEF 

Kevin Lowery vs. City of Albuquerque, as applied to the February 24, 2011 City of Albuquerque Safe City Strike Force closing of Tower Plaza

 No.  CIV 09-0457 KB/WDS

 Re:       If a missing flight of stairs from the 2nd floor to the lobby is sufficient exigency for a warrantless vacating of a building.

 Holding of Lowery:   

“The primary issue is whether an objective observer would believe that the violation for which the Plaintiff’s were cited posed an immediate threat to the lives or safety of the occupants, the public or the officers such that an exception to the Fourth Amendment prohibition against warrantless searches and seizures was justified.”

The City of Albuquerque Safe City Strike Force is part of the Nuisance Abatement team within the City Attorney’s Office. Under the law, a property owner is allowed reasonable time to abate the nuisance before the City is permitted to seize the property.

In the case of Tower Plaza, the Strike Force declared the missing lobby staircase and ‘tripping hazards’ across the roof egress rose to the level of ‘exigency’ required for immediate vacating and seizure of the property without a warrant or due process.

Yet, in the official Notice & Order, an Appeal filed in a reasonable time ‘stayed enforcement’ of that very Order to Vacate, negating the claim of exigency.

In addition, Lowery followed Freeman v. City of Dallas, 242 F.3d at 654, that:

“The ultimate test of reasonableness is fulfilled in this case by the City’s adherence to its ordinances and procedures as a prelude to ordering the landowners to abate their nuisance structures. The Supreme Court originally extended an administrative warrant requirement to civil investigations because “the basic purpose of [the Fourth] Amendment . . . is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara, 387 U.S. at 528 (emphasis added). . . . The City’s . . . municipal habitation code . . . is sufficiently hedged about by published standards, quasi-judicial administrative proceedings, and flexible remedies that it is not arbitrary. In the context of reviewing civil administrative and regulatory enforcement of laws enacted pursuant to the traditional police power, Fourth Amendment reasonableness means non-arbitrariness.”

In Lowery, the City claimed their Notice & Order provided an opportunity for landowners to abate their nuisance structures through Appeal, thus staying enforcement of the Order to vacate.

The question in Tower Plaza versus the City of Albuquerque is if the Appeal in the Notice & Order was arbitrary.

Arbitrary means based on whim or individual will, rather than legal process.

ar·bi·trar·y/ˈärbiˌtrerē/Adjective

1. Based on random choice or personal whim, rather than any reason or system.

2. (of power or a ruling body) Unrestrained and autocratic in the use of authority.

In the Notice & Order, Plaintiff argued, “that the appeal process itself demonstrates that no true exigency exists, because it allows residents back into a home even when previously it was deemed too dangerous to life and safety for the residents to stay there.” Lowery, p. 39.

This very Appeal provision stayed the Fire Marshal’s orders, much to his chagrin.

However, in the administrative hearing, the attorney for Tower Plaza did not argue the exigency issue, or the reasonableness of addressing the Fire Marshal’s concerns by replacing the stair, missing for half a century, and cleaning up ‘tripping hazards’ on the roof egress.

Nevertheless, by not having an immediate Hearing, i.e., Due Process, Tower Plaza was effectively ‘seized’ and vacated. The tenants had moved out; vacating and seizure of Tower Plaza was a moot point.

Exigency for Warrantless Seizure; or not?

The Albuquerque Fire Marshal will claim exigency based on the code violations for fire egress. In the very words of the assistant Fire Marshal, “We can’t be liable for your deaths in case of a fire.” To me, that sounded almost like a threat of arson.

To a landowner, not at fault for the missing stairway from the 2nd floor to the lobby, reasonable accommodation to abate the nuisance would involve replacing the stairs in a matter of weeks, and cleaning up the ‘tripping hazards’ across the roof egress.

With ‘fire watchers’ and the enhanced fire alarm, the ‘exigency’ would be abated. However, the Fire Marshal insisted on vacating the building, plus $8.00 per hour ‘fire watchers on 24-hour watch billed to the landowner at $1000 per day.

However, according to Lowery, the arbitrary nature of the Appeal provision was a Fourth Amendment violation per se.

[Lowery, p. 69]    “The length of time that they would be prohibited entry depended on whether and how quickly they filed an appeal, or hired a firm to complete the testing and remediation, In the absence of either of these actions, the Plaintiffs would be barred from entry indefinitely. The holding of Illinois v. McArthur rested on an assessment of the length of the seizure vis a vis the police objectives the seizure ceased as soon as the objective of obtaining a warrant was achieved. Here, there is a disconnect between the putative objective of the order to vacate – [p. 70] to protect inhabitants from the threat . . . and the provision of the ordinance allowing re-entry upon appeal, indicating that the length of the seizure is not “jealously and carefully drawn” in accord with the objective. United States v. Aquino, 836 F.2s at 1271.

The Court concludes that the Defendants have not demonstrated that there is a genuine issue of material fact whether an objective observer would find that the seizure of the entire home for an indefinite period was sufficiently tailored in scope and duration to protect the interests of the residents under the Fourth Amendment.”

Conclusion:

Based on Lowery’s analysis of Fourth Amendment rights, the City of Albuquerque Safe City Strike Force arbitrarily seized Tower Plaza in an act of Inverse Condemnation.

The landowner was not responsible for the half century of code violations, existing even as far back as when the City of Albuquerque Police Department had offices in Tower Plaza.

Heightened awareness through alarm systems, a reasonably priced ‘fire watch, or a temporary vacating during reasonable abatement of fire egress issues raised by the Fire Marshal would have protected the owner’s Fourth Amendment rights.

In addition, International Fire Code forbids a government agency from forcing modern fire code on stairs in an existing structure, if the stairs are fireproof and meet basic load test.

There is no situation in which the IFC would require the stairs in an existing building to be replaced. The only situation in which stair design would become an issue is in a complete rehab, but even in that situation the IFC provisions would not mandate that the stairs be replaced. (NMHC National Multi Housing Council, 2009 Building Codes Update p. 5)

In the alternative, if the Fire Marshal is supported in a court of law that the fire code violations were not correctable without essentially demolishing part of the structure, then the City of Albuquerque is liable for just compensation of the owners for ‘taking’ the building.

Either way, by not providing Fourth Amendment protection to Tower Plaza for reasonable time to abate code violations, the City of Albuquerque, not Tower Plaza, is liable.

Appendix

Inverse Condemnation – An Action brought by a property owner for compensation from a governmental entity that has taken the owner’s property without bringing formal condemnation proceedings. See also ‘condemnation blight.’ Black’s Law Dictionary

New Mexico Constitution

Art. II, § 20   Eminent Domain – Private property shall not be taken or damaged for public use without just compensation.

§ 42A-1-29 NMSA 1978 – Property taken or damaged without compensation or condemnation proceedings; right of action by condemnee

A person authorized to exercise the right of eminent domain who has taken or damaged or who may take or damage any property for public use without making just compensation or without instituting and prosecuting to final judgment in a court of competent jurisdiction any proceeding for condemnation is liable to the condemnee, or any subsequent grantee thereof, for the value thereof or the damage thereto at the time the property is or was taken or damaged, with ten percent per year interest, to the date such just compensation is made, in an action to be brought under and governed by the Rules of Civil Procedure for the District Courts of this state. Actions under this section shall be brought in the county where the land or any portion thereof is located.

§ 42-1-23 NMSA 1978 Repealed by Laws 1981, ch. 125, § 62; recompiled by Laws 1981, ch. 125, § 60

§ 42-3-2. Definitions.

As used in the Relocation Assistance Act:

  1. A.    “agency” means any department, agency or instrumentality of:

3)       a political subdivision of the state: or

4)       any combination of the federal government, the state or a political subdivision of the state . . .

§ 42-3-5 NMSA 1978 – Relocation Payments.

  1. A.    Whenever a program or project undertaken by an agency will result in the displacement of any person, the displacing agency shall provide for payment to the displaced person for:

§ 42-3-10. Compensation for expenses of inverse condemnation.

A court rendering a judgment for the plaintiff in a proceeding brought under Section 42-A-29 NMSA 1978 awarding compensation for the actual physical taking of the property by the displacing agency, or the agency effecting a settlement of any such proceeding, shall, when required by federal law or by a federal grant contract governing the project or program, determine and award or allow to the plaintiff as a part of the judgment or settlement a sum which will reimburse the plaintiff for his reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees actually incurred because of the proceeding.

§ 13-709. Partial taking of leasehold; damages to tenant.

At the time of the taking, the tenant had a lease on the property for a term ending ___________.

The tenant is entitled to recover money damages for the value of the leasehold loss, which you find to have resulted from the taking. You shall determine any loss as follows: from the fair rental value of the lease property immediately before the taking, subtract the fair rental value of the remaining lease property immediately after the taking. [From the resulting loss of the fair rental value, subtract the reduction in rent provided for in the condemnation clause of the lease.]

[The tenant is also entitled to the value of the loss resulting from the taking, or devaluation of the fixtures and improvements which were owned by the tenant.]

Damages for leasehold loss should be discounted to present value as of the date of taking.

Grandfather Clause

It is uncertain which statutes are controlling the ‘red-tagging’ of the Tower Plaza units, or what codes are exempt under Grandfather Clauses, implied or omitted.

KRQE Interview with City official T.J. Wilham

“City spokesman T.J. Wilham said the city had no choice but to order the tenants of the top floors to sleep somewhere else Thursday night.“If a fire were to break out on the second floor, people on floors three to seven it’s highly likely they would perish in the fire,” Wilham said. “Their odds of survival are slim.

Wilham said tenants would use an outside fire escape to get to a bottom roof. He said the ladder that should get the tenant down safely is not safe at all.”

http://www.krqe.com/dpp/news/business/city%3A-apartment-complex-is-a-death-trap

Resident Statement on Safety of Fire Escape

“In the Summer, I use the fire escape often to maintain the East swamp cooler. I am 310 lbs, and the stairs are solid and the railings make me feel more than secure in my descents and ascents. I once accessed the second roof to retrieve my errant cat, which was simple enough. However, in the thirteen years I have occupied my art studio on the 5th floor, I have never needed to use the ladder to the stairs to ground level. This is the most solidly constructed and fire-proof building I have ever seen. It is concrete, steel, and the walls are plastered with Structolite over wire mesh with fired tile behind it. I’ve never felt safer in any building, regardless of claims of Mr. Wilham to the contrary.

This building is in plain view of Building Code & Safety at Maya Plaza, less than a block away. I knew Mr. Steele, the former head of Building Code & Safety and he visited Tower Plaza personally, as did Elevator Inspector Vanderslice.

In addition, this building was once home to city offices, including police detectives. I know this from old desks I found and refinished. I found detective police reports in them.”

Case Law

In an inverse condemnation proceeding, lost profits may be recovered when they are the best measure of the value of the lost use and enjoyment of condemned land;  Primetime Hospitality, Inc. v. City of Albuquerque, 146 N.M. 1, 206 P.3d 112

Property owners were entitled to a trial on the merits regarding their claim of inverse condemnation pursuant to former 22-9-22, 1953 Comp. (now 42A-1-29 NMSA 1978), as to the design, construction, and maintenance of a highway on a newly established right-of-way because no governmental immunity attached to that claim; further, N.M. Const. art. II, § 20 guaranteed just compensation for takings. Wheeler v. Bd. Of County Comm’rs, 74, N.M. 165, 391 P.2d 664 (1964)

McClure v. Town of Mesilla, 93 N.M. 447, 601 P.2d 80 (Ct App 1979).

Fact pattern – Town installed storm drain that resulted in erosion damage to owner’s property. Tort Claims Act barred negligence, but inverse condemnation is NOT a common law tort, but a remedy under NM Stat Ann § 41-1-23.

Tower Plaza v. City of Albuquerque – Safe City Strike Force is a government program similar to maintenance of storm drainage. The result of the City’s closure and ‘red-tagging’ of Tower Plaza, whether proved justified or not, is essentially a ‘takings.’

Takhar v. Town of Taos, 135 N.M. 741, 93 P.3d 762 (Ct App 2004)

Fact pattern – Town of Taos halted completion of Plaintiff’s apartment complex, requiring Plaintiff to obtain a special use permit. Plaintiff sought and was denied permit. Ct App reversed District Court’s dismissal.

Tower Plaza v. City of Albuquerque – Tower Plaza has enjoyed tacit and continuing approval for operating as a mixed-use rental property for approximately ten years.

Tower Plaza, LLC was purchased by Plaintiff after improvements were made by the previous landlord to the fire alarm system, and elevator. For ten years, Plaintiff continued to make improvements per Fire Marshall’s orders until the Fire Marshall, under the Safe City Strike Force, decided the Tower Plaza units were a “Death Trap” and red-tagged units 3, 4, 5, 6, and 7 . . . causing loss of use and enjoyment of property, and losses amounting to bankrupting the Plaintiff.

Defendant ‘crowed’ their condemnation of the Tower units on Channel 13 (KRQE), which amounts to Slander of Title.

Safe City Strike Force condemnation is a taking, as a rightful administrative practice under color of law, vis-à-vis Fire and Building code enforcement, or issuing of permits.

Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (S. Ct. Ark. 1990)

Fact pattern – See the following research by Arkansas’ Atty Gen. Office.

From a letter to a Representative Linda Chesterfield from Dustin McDaniel, Attorney General:

Your question suggests that your constituents feel that the Commission may have infringed on their rights in several respects: first, by effecting a constructive condemnation of the property at issue by reducing its value to the current owners by threatening a future exercise of the Commission’s power of eminent domain; and, secondly, by intentionally interfering with your constituents’ contractual relations or business expectancy with respect to the property. As regards the concept of inverse condemnation, the Arkansas Supreme Court has offered the following summary in Robinson v. City of Ashdown, 301 Ark. 226, 230, 783 S.W.2d 53 (1990):

As originally conceived and developed, the concept of inverse condemnation was a remedy for physical taking of private property without following eminent domain procedures. “Fault” has nothing to do with eminent domain, and it is not bare trespass or negligence which results in inverse condemnation but something which amounts to a de facto or common law “taking.” J. Sackman & P. Rohan, Nichols on Eminent Domain, 8.1[4] (Rev. 3d ed. 1985, Supp. 1987). Inverse condemnation is thus a cause of action against a governmental defendant to recover the value of property which has been taken in fact by a governmental entity although not through eminent domain procedures.

As the court further observed: When a municipality acts in a manner which substantially diminishes the value of a landowner’ land, and its actions are shown to be intentional, it cannot escape its constitutional obligation to compensate for a taking of property on the basis of its immunity from tort action.

Id. at 232; accord City of Fayetteville v. Stanberry, 305 Ark. 210, 215, 807 S.W.2d 26 (1991).

Most directly on point with respect to your question is National By-Products v. City of Little Rock, 323 Ark. 619, 916 S.W.2d 745 (1996), in which the Arkansas Supreme Court rejected a claim of inverse condemnation based upon an announcement by the Little Rock Regional Airport Commission (the “regional Commission”) that it intended to condemn certain property in order to extend a runway. In the course of rendering its opinion that the Regional Commission’s action did not violate U.S. Const. amend. 5 or Ark. Const. art. 2, § 22, which prohibit a government’s “taking” of property without just compensation, the court observed:

At least one commentator has characterized the issue presented in this case as one involving “condemnation blight,” which is defined as “the debilitating effect upon value of a threatened, imminent or potential condemnation.” 4 J. Sackman, Nichols on Eminent Domain, § 12B.17[6] (Rev. 3d ed. 1995).

323 Ark. at 624-25. Citing Danforth v. United States, 308 U.S. 271 (1939), the court offered the following analysis:

The United States Supreme Court held that, in the context of condemnation proceedings, a taking does not occur until compensation is determined and paid:

A reduction or increase in the value of property may occur by reason of legislation for or the beginning or completion of a project. Such changes in value are incidents of ownership.[1] They cannot be considered as a “taking” in the constitutional sense.

482 U.S. 271 at 285. See also Agins v. City of Tiburon, 447 U.S. 255 (1980) (a municipality’s good-faith planning activities[2], which did not result in successful prosecution of an eminent domain claim, did not so burden landowners’ enjoyment of their property as to constitute a taking). 323 Ark. at 625-26.

In rejecting the appellant’s claim, the court in National By-Products remarked:

We followed the rationale of the Danforth decision in Hood v. Chadick, County Judge, 272 Ark. 444, 615 S.W.2d 357 (1981); see also 4 J. Sackman, Nichols on Eminent Domain § 12B.17[6] (Rev. 3d ed. 1995). In that case, Hood appealed from the trial court’s dismissal of his case against Jefferson County for damages he alleged were caused by the county’s threat to take his property. Hood owned a building registered as a historical landmark located across the street from the Jefferson County Courthouse. After the courthouse burned in 1976, a commission was appointed to discuss plans for rebuilding. The commission’s members considered plans to take Hood’s property for parking and landscaping. The original plan, approved by the City Council in 1978, was withdrawn from a November 1978 election. A subsequent plan was developed and referred to the people in a July 1979 election. The plan was defeated. Subsequently, the county dismissed its condemnation suit against Hood, which had been filed in response to Hood’s suit to enjoin the county judge from taking his property and for damages for loss of rentals. In affirming the trial court’s dismissal of Hood’s case, we observed that the county never took possession or even entered upon Hood’s property and concluded that “[n]o damages are allowable for a mere ‘threat to condemn.’” Id. at 447; see also Watson v. Harris, 214 Ark. 349, 216 S.W.2d 784 (1949); Southwestern Water Co. v. Merritt, 224 Ark. 499, 275 S.W.2d 18 (1955) (holding that the actual taking or damage of lands for public use is what must be compensated under the state and federal constitutions, not a plan to take or damage the land).

323 Ark. at 626-27. Although the court observed that the result might have been different if the Commission had acted in bad faith in dealing with the landowner, it found no evidence of intent to cause injury. Id. at 627-28.

In my opinion, a court reviewing the facts giving rise to your question would apply the standard set forth in National By-Products. As noted at the outset of this opinion, I am not a finder of fact and consequently cannot determine whether the Commission in this case acted in good faith or not. However, assuming no evidence of bad faith exists, I believe a reviewing court would reject any action alleging inverse condemnation.

With respect to your suggestion that the Commission may have tortiously interfered with your constituents’ contractual relationships or business expectancies, I believe a reviewing court would apply the following standard, which the Arkansas Supreme Court set forth in United Bilt Homes v. Sampson, 310 Ark. 47, 51, 832 S.W.2d 502 (1992):

Underlying the tort is the premise that a person has a right to pursue valid contractual and business expectancies unmolested by the wrongful and officious intermeddling of a third party.[3] Walt Bennett Ford, Inc. v. Pulaski County Special School District, 274 Ark. 208, 624 S.W.2d 426 (1981); Mason v. Funderburk,[ 247 Ark. 521, 521, 446 S.W.2d 543 (1969)], supra. The elements of tortious interference which must be proved are: (1) the existence of a valid contractual relationship or a business expectancy; (2) knowledge of the relationship or expectancy on the part of the interfering party; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted.[4] W.E. Long Co. v. Holsum Baking Co., 307 Ark. 345, 820 S.W.2d 440 (1991); Mid-South Beverages, Inc. v. Forrest City Grocery Co., Inc., 300 Ark. 204, 778 S.W.2d 218 (1989).

As the recited elements of this tort suggest, any inquiry into a defendant’s conduct will be intensely factual and, as such, is beyond my ability and authority to address.

Question 2: If not, will the Commission be subject to civil liability?

This question may well be moot in light of my conclusion that the Commission may announce its plans regarding future condemnations so long as it does not do so with the express intention of thereby causing injury to affected property owners. However, I will note that, as a general proposition, Commission members enjoy limited immunity pursuant to A.C.A. § 21-9-301 (Repl. 2004), which provides:

(a) It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance.

(b) No tort action shall lie against any such political subdivision because of the acts of its agents and employees.

In Ark. Op. Att’y Gen. No. 1987-299, one of my predecessors opined that this limited immunity applies to members of an airport commission. I concur in this conclusion. However, as noted in my response to your previous question, Commission members may face liability for conduct that constitutes an intentional tort.[5] I am neither situated nor authorized to opine whether any such misconduct occurred in this case.

Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/JHD:cyh

http://ag.arkansas.gov/opinions/docs/2007-195.html

Notes on Eminent Domain Law

New Mexico Eminent Domain Laws can be found in Chapter 42A of Statutes of New Mexico. Pursuant to N.M. Stat. Ann. § 42A-1-3, at any time before or after commencement of a condemnation action, the parties may agree to and carry out a compromise or settlement as to any matter, including all or any part of the compensation or other relief.

N.M. Stat. Ann. § 42A-1-4 provides that a condemnor should make reasonable and diligent efforts to acquire property by negotiation. Unless prohibited by federal law, if the condemnor or condemnee have prepared appraisals for the property, s/he should make such appraisals available to the other party during the negotiation period.

If the parties are unable to negotiate a settlement, the condemnee may, within twenty-five days after written notice by the condemnor of its intent to file a condemnation action in district court, give written notice to the condemnor requesting an appraisal to determine the amount that would constitute just compensation for the taking of the condemnee’s property[i].

Pursuant to N.M. Stat. Ann. § 42A-1-6, an action to condemn property may not be maintained over timely objection by the condemnee unless the condemnor made a good faith effort to acquire the property by purchase before commencing the action.

N.M. Stat. Ann. § 42A-1-8 provides that a condemnor and its agents and employees may enter upon the real property and make surveys, examinations, photographs, tests, soundings, borings and samplings, or engage in other activities for the purpose of appraising the property or determining whether it is suitable and within the power of the condemnor to take for public use.

After notice by the condemnor to the condemnee, the court should make its order permitting and describing the purpose of the entry and setting forth a description of the property and the nature and scope of activities the court determines are reasonably necessary to accomplish the purposes of the proposed taking and authorized to be made upon the property[ii].

An order permitting entry should include a determination by the court of the probable amount that will fairly compensate the condemnee and any other person in actual physical occupancy of the property for damages, for physical injury to the property and for substantial interference with possession or use of the property found likely to be caused by the entry and activities authorized by the order[iii].

Additionally, the order may require the condemnor to deposit with the court before entry that amount or a surety bond in that amount from a surety acceptable to the court.

If a deposit or surety bond is required or the amount required to be deposited or the amount of the surety bond is increased by an order of modification, the court should specify the time within which the required amount must be deposited or the surety bond increased[iv].

The court should also direct that any further entry or specified activities or studies under the order as modified be stayed until the required deposit or increase in the surety bond has been made.

A condemnor is liable to the condemnee and to the person in actual physical occupancy of the property for physical injury to and for substantial interference with possession or use of property caused by its entry and activities upon the property[v].  In an action or other proceeding for recovery of damages, the claimant is allowed his/her reasonable costs. In addition, the court may award the claimant his/her litigation expenses.

N.M. Stat. Ann. § 42A-1-17 provides that if a property is sought to be appropriated for public use by a person authorized to acquire property pursuant to the laws of New Mexico, and the condemnor and the condemnee cannot agree to the transfer of the property or interest in question, the condemnor may file a petition with the court of the county where the property or any part thereof lies.  However, the petition should not include any property which is not contiguous to property to be condemned in the county of the court’s jurisdiction.

If appraisers have not been appointed and if the court is satisfied that proper notice of the petition has been given, it should appoint up to three disinterested commissioners who are residents of the county in which the property or a part thereof is situated and who are familiar with the property values in the area of the proposed taking[vi].

The commissioners should assess the damages which the condemnees may severally sustain by reason of the proposed taking and make a report to the clerk of the court within thirty days setting forth the amount of the damages.

Upon the filing of the report of the commissioners, the clerk of the court should notify the attorneys of record for all of the parties to such proceeding who have entered appearances or, if not represented by attorney, all parties who have entered appearances at their respective post-office addresses of record, of the filing of the report[vii].

Within twenty days after the filing of the petition if an appraisal has been prepared or after the final confirmation of the report of the commissioners, a party may demand trial of any issues remaining in the cause.  The cause should be tried de novo, and unless waived, the parties should be entitled to a trial by jury[viii].

N.M. Stat. Ann. § 42A-1-24 provides that whenever just compensation is ascertained and awarded in such proceedings and established by judgment, the judgment should include as a part of the just compensation awarded interest at the rate of ten percent a year upon the unpaid portion of the compensation awarded from the date the petition is filed to the date of payment or the date when the proceedings are finally abandoned.

A person authorized to exercise the right of eminent domain who has taken or damaged or who may take or damage any property for public use without making just compensation or without instituting and prosecuting to final judgment in a court of competent jurisdiction any proceeding for condemnation is liable to the condemnee, or any subsequent grantee thereof, for the value thereof or the damage thereto at the time the property is or was taken or damaged, with ten percent per year interest[ix].

Pursuant to N.M. Stat. Ann. § 42A-1-33, when an easement has been taken by eminent domain for public use and the public use is subsequently abandoned, the easement is extinguished and the possession of the property reverts to the owner or his/her successor in interest of the fee free from any rights in the condemnor.

[i] N.M. Stat. Ann. § 42A-1-5.

[ii] N.M. Stat. Ann. § 42A-1-9.

[iii] N.M. Stat. Ann. § 42A-1-10.

[iv] N.M. Stat. Ann. § 42A-1-11.

[v] N.M. Stat. Ann. § 42A-1-12.

[vi] N.M. Stat. Ann. § 42A-1-19.

[vii] N.M. Stat. Ann. § 42A-1-20.

[viii] N.M. Stat. Ann. § 42A-1-21.

[ix] N.M. Stat. Ann. § 42A-1-29.


[1] Tower Plaza entered into the purchase in good faith, knowing that the Fire Marshall had insisted on code compliance and approved completion from inspections prior to that purchase. The Fire Marshall continued to request code compliance over the course of ten years, which Tower Plaza performed without hesitation. The Fire Marshall, after ten years, has now changed his mind, condemning the property as Substandard and Barred Occupancy, without formal notice of specific violations, or a hearing challenging that decision. The sudden barring of contractual residency and collection of rents, plus burdensome expenses for security and accommodation of displaced residents is a de facto condemnation and takings. The imminent bankruptcy of Tower Plaza, LLC, and the associated Kachina Properties, is harm based on loss of property to the banks via default, and eventual formal condemnation by the City.

[2] Fact Pattern:  The ‘good faith’ element favoring the City is the ‘health and safety’ of Tower Plaza residents, based on the ability and practices of the Fire Dept. in rescue attempts.

[3] Tower Plaza has been effectively ended as a business collecting rents, plus has been burdened with costly ‘fire watchers’ in a building that has never seen a fire, and is built to levels earning it status of a bomb shelter. This has occurred by the City Safety Strike Force without notice and without opportunity to appeal in a formal hearing setting with challenges from expert witnesses.

[4] The sudden cessation of occupancy and rents was caused by the City Strike Force without notice, by entering the building premises posting notices threatening tenants with Misdemeanor citations.

[5] The tortuous interference was intentional for purposes of public safety, however, unproven as imminent or a real threat. Ten years of co-operation with the Fire Marshall belie any negligence on the part of the Plaintiff. The acts of the City were capricious, and possibly a reaction to recent apartment fires elsewhere in the city.

Here is a 71-page PDF of the Memorandum and Order.        Click on Link >>>>  Lowery_09-0457

THE FIRST ELIGIBILITY CASE (1789)

April 29, 2011

Important Update:

In his comment section at http://puzo1.blogspot.com/, Mario Apuzzo reveals what I expected, that even though Madison won an argument that Mr. Smith was a citizen based on ‘place of birth’ principles, Madison followed the 1790 Act passed 10-months later requiring a U.S. citizen parent . . . birthplace not being an active principle in U.S. naturalization law.

http://www.scribd.com/puzo1/d/94493192-Purpura-Moran-v-Obama-Brief-and-Appendix-Filed-5-18-12 is an important read . . . very thorough . . . send to your congressman.

If she was not of age, then she might well be deemed under the circumstances of this case to hold the  citizenship of her father; for children born in a country, continuing while under age in the family of the father, partake of his national character, … 

Shanks v DuPont, 28 U.S. 242; 7 L. Ed. 666; 1830 U.S. LEXIS 537 (1830)

THE FIRST ELIGIBILITY CASE

The Case of Mr. Smith

Ramsay’s Petition in the Case of Mr. Smith, May 22, 1789,[1] was a thorough analysis of by what mechanisms a person became a U.S. citizen. #1, if I recall, was ‘by birth or inheritance.’ It was based on his nine-page Dissertation published in 1789.

The petition of Dr. Ramsey was again read, in which he stated, “That citizenship with the United States is an adventitious character to every person possessing it, who is now thirty years of age; and that it can, in no case, have been acquired but in one of the following modes: 1st, By birth or inheritance. 2dly, By having been a party to the late revolution. 3dly, By taking an oath of fidelity to some of the States. 4thly, By tacit consent. 5thly, By adoption: and that Mr. Smith cannot have acquired the character of a citizen in either of the modes, seven years ago. He cannot be a citizen by birth or inheritance, for he was born in 1758, in South Carolina, while a British colony’ and his parents were both dead many years before the declaration of independence; his birthright and inheritance can, therefore, be no other than that of a British subject; for no man can be born a citizen of a Government which did not exist at the time of his being born; nor can parents leave to their children any other political character than that which they themselves possessed.”

James Madison countered that ‘place of birth’ was the primary principle, i.e., jus solis as practiced in the states as English colonies.

FACTS

Mr. Smith’s parents died some years prior to 1776 and he was taken to England (exactly where is uncertain) to be raised and educated, returning to his birthplace, S. Carolina, at age 23. Seven years later, at age 30, he ran for congress and his citizenship was challenged.

The congressional hearing sided with Madison, disregarding Smith being ‘born’ of British subjects and not ‘inheriting’ U.S. citizenship from his parents in 1776, or becoming a U.S. citizen ‘at the time of adoption’ of the U.S. Constitution (Art. II).

Ironically, only ten months later, (March 26, 1790) the 1790 Uniform Naturalization Act was passed following Dr. Ramsay’s Dissertation and Petition[2] . . . not the colonial  jus solis position of James Madison.

Under the 1790 Act, Smith would have been required to apply for naturalization at a court of proper jurisdiction.

United States Congress, “An act to establish an uniform Rule of Naturalization” (March 26, 1790).

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States. 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.

Note: The Wong Kim Ark case is analogous; the proper application of law would have been his appeal to the denial of his application for naturalization because of the Burlingame Treaty and the Chinese Exclusionary Act, the proper jurisdiction of SCOTUS,[3] NOT misinterpreting the 14th Amendment to create jus solis citizenship where it never was. Cf. the Hausding and Greisser cases cited in Chief Justice Fuller’s dissent in Wong Kim Ark.[4]

And to the same effect are the rulings of Mr. Secretary Frelinghuysen in the matter of Hausding, and Mr. Secretary Bayard in the matter of Greisser.

Hausding was born in the United States, went to Europe, and, desiring to return, applied to the minister of the United States for a passport, which was refused on the ground that the applicant was born of Saxon subjects temporarily in the United States. Mr. Secretary Frelinghuysen wrote to Mr. Kasson, our minister:

You ask “Can one born a foreign subject, but within the United States, make the option after his majority, and while still living abroad, to adopt the citizenship of his birthplace? It seems not, and that he must change his allegiance by emigration and legal process of naturalization.” Sections 1992 and 1993 of the Revised Statutes clearly show the extent of existing legislation; that the fact of birth, under circumstances implying alien subjection, establishes, of itself, no right of citizenship, and that the citizenship of a person so born is to be acquired in some legitimate manner through the operation of statute. No statute contemplates the acquisition of the declared character of an American citizen by a person not at the time within the jurisdiction of the tribunal of record which confers that character.

Greisser was born in the State of Ohio in 1867, his father being a German subject and domiciled in Germany, to which country the child returned. After quoting the act of 1866 and the Fourteenth Amendment, Mr. Secretary Bayard said:

Richard Greisser was no doubt born in the United States, but he was on his birth “subject to a foreign power,” and “not subject to the jurisdiction of the United States.” He was not, therefore, under the statute and the Constitution a citizen of the United States by birth, and it is not pretended that he has any other title to citizenship.

2 Whart.Int.Dig. 399.

Many supporters of jus solis champion James Madison’s position, Madison being one of the framers of the constitution, ipso facto his jus soli position in the Case of Mr. Smith is valid and true law. However, look at the 1802 Naturalization act as cited by Justice Gray in Wong Kim Ark:

The children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the Government of the United States, may have become citizens of any one of the said States under the laws thereof, being under the age of twenty-one years at the time of their parents’ being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States, and the children of persons who now are, or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States.

Act ofApril 14, 1802, c. 28, § 4; 2 Stat. 155.

Note that this revised act discriminates clearly between two types of citizens at birth going back to the beginning of the Republic. It is not apparent at first glance, but the text infers that until the 1790 Act’s reliance on jus sanguinis, states of the new nation had to rely on traditional jus solis, as the colonies were limited to for nearly a century.

Therefore, at the time of the Smith case, weeks prior to passage of the 1790 Act, Madison was appying correct law concerning citizenship at birth.

The 14th Amendment was proposed only nine weeks after passage of the 1866 Civil Rights Act.

The 1866 Act began with “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States . . .” Cf. The 14th Amendment’s “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States”

The basic intent of the 14th Amendment and the 1866 Civil Rights Act was to guarantee full rights of citizenship to freed slaves who did not inherit either foreign or U.S. citizenship, because their slave parents were property and outside all government jurisdictions, except for those laws controlling such property.

Update — August 29, 2011    Further research presented by a friend in Virginia reveals Mr. Smith’s connections to the Revolutionary War and the Declaration of Independence. Smith maintained, through loco parentis, his S. Carolina estates, even though born as and living as a British subject in Europe. His meetings and business with Benjamin Franklin is his proof of membership of the United States as a citizen, thus meeting one of Dr. Ramsay’s conditions. However, Smith’s argument mirrors that of James Madison that birthplace alone was his membership card to the newly declared nation. Here is a link to Smith’s recorded comments: http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=210


[3] U.S. Const. Art. III, Section 2, Clause 1. Subjects of Jurisdiction.  “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, . . . “

Who is a Citizen-at-Birth, or a Natural Born Citizen?

January 7, 2011

“The state of Hawaii has said that President Obama was born there,” the speaker [John Boehner] responded. “That’s good enough for me. http://www.cbsnews.com/8301-503544_162-20027684-503544.html

I submit that Speaker John Boehner neglected his due diligence.

Who is a Citizen-At-Birth?

Who is a Natural Born Citizen?

natural-ize — def.  to remove alienage by statutory provision or oath.

natural born citizen — a child born without alienage, e.g., not dealienaged by statutory provision.

 These two questions must be asked by the 112th Congress for two reasons:

 1)      Illegal immigration and the ‘border,’ ‘anchor,’ or ‘jackpot’ baby is creating citizens at birth bankrupting hospitals, communities, and diluting state sovereignty.[1]

2)      By claiming Hawaiian birth, Barack Hussein Obama assumed constitutional eligibility to be President of the United States. However, reading Article II, Sec. 5 of the U.S. Constitution in context of the intent of the framers would deny the son of a British subject natural born citizen eligibility (unless born prior to the “the time of adoption of this constitution.”).

 When Attorney Phillip Berg filed his 2008 lawsuit against Barack Hussein Obama, I was intrigued. However, after two weeks of personal research in my spare time, I had to conclude that Barack Obama was, indeed, a U.S. citizen, but only by statutory provisions.[2]

The next question was if he was a natural born citizen as required by Article II, Sec 5.

The answer was, clearly, No. Obama inherited British and Kenyan nationality at birth through an alien, non-immigrant father.

na-tur-al-ize — def. dealienage by statutory provision at birth or oath.

natural born citizen — def.  a child born without alienage, i.e.,  not requiring ‘dealienage by statutory provision.’

By the time you finish reading this memo, you will wonder how Speaker John Boehner, most of congress,* the media, and many legal scholars got the intent of the framers and the first legislators so wrong.

They lacked curiosity and due diligence, which I hope I can provide you in this memo, and the memos linked within.

*See Appendix A for letters from Congressmen Burgess and McCotter.

 The framers created the term of art ‘natural born citizen’ based on Vattel’s ‘Law of Nations.’

 § 212. Citizens and natives. The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens,* are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.

* English translation from the original French, ‘indigenes’

Conversely, a society will dilute itself and cease to exist if it allows itself to be populated by children of aliens . . . . . This is why La Raza and the Mexican government so strongly support birthright citizenship; it fulfills their political agenda.

Minor vs Happersette, 88 U.S. 162 (1875) was, at least, honest in its appraisal of ‘natural born citizen’ being unquestionably the child of U.S. citizen parents, and only possibly relying on native-birth alone.

 The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.

Chief Justice Waite in Minor vs Happersette (1875)

What about the 14th Amendment?

The 14th Amendment was passed in order to ‘immunize’ the Civil Rights Act of 1866 from congressional repeal or revision.

Here is the preamble to the 1866 Act:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States;”

Here is the preamble to the 14th Amendment:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

Finally, here is the first section of the Aliens and Nationality Act, Title 8 U.S.C. 1401:

“The following shall be nationals and citizens of the United States
at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;”

Note: That ‘not subject to any foreign power’ is synonymous to the phrase ‘subject to the jurisdiction thereof.’

Note 2:  That accepting Horace Gray’s interpretation, ‘under the jurisdiction thereof’ is a massive REDUNDANCY to ‘born in the United States’ . . . hardly a modifying or conditional clause.

Note 3: Justice Horace Gray violated subject matter jurisdiction AND precedent from an 1884 case, Elk vs Wilkins, which got it RIGHT!

Elk v. Wilkins, 112 U.S. 94 (1884)

The main object of the opening sentence of the Fourteenth Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this Court, as to the citizenship of free negroes ( 60 U. S. 73; Strauder v. West Virginia,@ 100 U. S. 303,
100 U. S. 306. This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being
naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired. (p. 111)

It is also worthy of remark that the language used about the same time by the very Congress which framed the Fourteenth Amendment, in the first section of the Civil Rights Act of April 9, 1866, declaring who shall be citizens of the United States, is “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” 14 Stat. 27; Rev.Stat. § 1992. (p. 103)

In fact, all that is necessary for this issue to be resolved is for Congress to debate and exercise its Plenary Power over Uniform Naturalization Law ( U.S. Const. Art. I, Sec. 8 ) to revise 8 U.S.C. 1401 to clarify its relationship to the 1866 Civil Rights Act preamble.

Cf. http://judiciary.senate.gov/hearings/testimony.cfm?id=1326&wit_id=3883

 The courts (see a brief analysis of Wong Kim Ark, virtually creating the jus solis standard out of thin air, in Appendix C) have for decades held that mere birth on U.S. soil was the controlling factor. Yet, here is Sec 3 of the 1795 Act describing how a minor child of an alien is naturalized, not by birthright, but successful naturalization of the parent.

SEC. 3. And be it further enacted, that the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years at the time of such naturalization, and the children of citizens of the United States born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States. Provided, that the right of citizenship shall not descend on persons whose fathers have never been resident of the United States. No person heretofore proscribed by any state, or who has been legally convicted of having joined the army of Great Britain during the late war, shall be admitted as foresaid, without the consent of the legislature of the state in which such person was proscribed.

NOTE:  There is no distinction made between minor children emigrating with the father, or those born on U.S. soil during the father’s naturalization process.

Here is how the 14th Amendment was interpreted as citizenship at birth, regardless of the alienage of the parent father:

The power, granted to Congress by the Constitution, “to establish an uniform rule of naturalization” was long ago adjudged by this court to be vested exclusively in Congress. Chirac v. Chirac (1817), 2 Wheat. 259. For many years after the establishment of the original Constitution, and until two years after the adoption of the Fourteenth Amendment, Congress never authorized the naturalization of any but “free white persons.” Acts of March 26, 1790, c. 3, and January 29, 1795, c. 20; 1 Stat. 103, 414; April 14, 1802, c. 28, and March 26, 1804, c. 47; 2 Stat. 153, 292; March 22, 1816, c. 32; 3 Stat. 258; May 26, 1824, c. 186, and May 24, 1828, c. 116; 4 Stat. 69, 310.

The Fourteenth Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship.

Notice that Justice Gray in Wong Kim Ark slips in his interpretation of Ark’s 14th Amendment right to citizenship at birth a Constitutional definition of citizenship. Chief Justice Fuller, by the way, disagreed. Per my discussion of the writing and purpose of the 14th Amendment, guaranteeing automatic citizenship to freed slaves and their children, the slaves had no subjection to any foreign jurisdiction. Yet, a child of an alien immigrant, legal or otherwise, possessed by nature and the laws of the foreign power alienage.

Alienage, which in Obama’s case was that of his British subject father, requires naturalization law to ‘de-alienage;’ that is the function of naturalization law. Therefore, Ark would have to be a naturalized citizen through his own application. In the same light, Barack Hussein Obama was a naturalized, statutory citizen at birth, through 8 U.S.C. 1401 or 1409.

This law, Mandatory Authority in interpreting who is a U.S. citizen, is clearly based on Emmerich de Vattel. The myriad of references to English law ( foreign law being persuasive, but lacking authority ) relied upon by the judiciary are extensive, but wrong.[3]

How can I prove it?

1) There is an alternative definition of citizenship being inherited, based on Vattel and not English law.

2) The result of jus solis birthright citizenship in a Republic, where those newborns are instantly equal members of the polity, i.e., citizens, yet of foreign nationality from their parent, has been rampant illegal immigration and destruction of our infrastructure and electorate. It is what Justice Joseph Story recognized as a ‘conflict of laws.’   Secretary of State William H. Seward, said: “But the idea of a double allegiance and citizenship united in the same person, and having reference to two separate, independent, and sovereign nations or governments, is simply an impossibility.” See also the Alexander Morse quote in the following section. https://paraleaglenm.wordpress.com/2009/02/27/barack-hussein-obama-a-natural-born-subject-of-great-britain/

3) Re-interpretation of the law in accordance to Vattel eliminates, i.e., cures current conflicts of nationalities and abuses of immigration, including a president born of a British subject, and of foreign influences favoring totalitarian economics and law.

 John Jay (May 22, 1793): “The Constitution, the statutes of Congress, the laws of nations, and treaties constitutionally made [not English law] compose the laws of the United States.”       (http://books.google.com/books?id=jVkSAAAAYAAJ , Page 479)

In a letter to Henry Lee ( http://tinyurl.com/ya3wj3j ) on June 25, 1824, James Madison wrote:

 What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense . . . And that the language of our Constitution is already undergoing interpretations unknown to its founders . . . Not to look farther for an example, take the word ‘consolidate’ in the Address of the Convention prefixed to the Constitution. It there and then meant to give strength and solidity to the Union of the States. In its current & controversial application it means a destruction of the States, by transfusing their powers into the government of the Union.

The Conundrum of Dual Nationality

Alexander Morse wrote:

 Any doctrine which recognizes a double citizenship or double nationality attempts to perpetuate a political hybrid, which is as abnormal and monstrous as its prototype in the natural world: and the expression even must disappear as soon as that wise and judicious system which Savigny almost created becomes universal. The basis of this system is £he principle which insists that there should be a harmony rather than a conflict of laws. The contrary principle, which seeks to perpetuate a conflict of laws, is a relic of barbarism, and is rapidly disappearing from view.

The jus solis model is best suited to a totalitarian sovereignty. Allegiance is state sanctioned regardless of parentage and only revocable by act of treason; it is for life. By adopting jus solis principles for granting citizenship at birth, the United States judiciary has created conflicts of law with children having the nationality of an alien parent as well as U.S. birthright.

In Justice C.W. Fuller’s dissent in Wong Kim Ark, he opines that English mandate of natural born subjects born to subjects overseas creates a conflict of laws, i.e., children of aliens born within English dominion are natural born subjects, but children of English subjects born overseas are not subjects to the place they were born.

Here is some English law.

Later, this problem of jus solis in a foreign sovereignty not under the King’s dominion is solved, “[t]to encourage also foreign commerce, it was enacted by statute 25 Edw. III st. 2, that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England . . . The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.                    The Laws of England: in four books,’  p 232, William Blackstone.

A Violation of Jurisprudence?

The case law Obama supporters rely on goes so far as to define ‘natural born citizen’ directly from English law’s ‘natural born subject,’ declaring no difference between ‘subject’ and ‘citizen.’ This case law is enormous in volume[4] to the point where Blackstone’s commentaries on English common law[5] is cited as precedent, raising  persuasive authority up to the level of mandatory authority.

This is an absolute violation of jurisprudence. Being British, the American colonies followed English law; that is a given. However, English law became secondary in value once the constitution was adopted. In regards to Wong Kim Ark’s adoption of jus solis, the Cooley Act and corresponding Chinese treaty did cause inequities, but it was that inequity that the Supreme Court had jurisdiction over, not the essence of Naturalization law itself. The Supreme Court had Article III jurisdiction over treaty and cases in Equity, but not to make changes to the specifically enumerated plenary power of congress over naturalization law itself.

Note the Connecticut Chief Justice Jesse Root’s comment in ‘The Origin of Government and Laws in Connecticut’ (1798), stating the following:

 We need only compare the laws of England with the laws of Connecticut, to be at once convinced of the difference which pervades their whole system . . . These rights and liberties are our own, not holden by the gift of a despot. Our government and our rulers are from amongst ourselves; chosen by the free, uninfluenced suffrages of enlightened freemen; not to oppress and devour, but to protect, feed, and bless the people, with the benign and energetic influence of their power (as ministers of God for good to them). This shows the ignorance of those who are clamorous for a new constitution, and the mistake of those who suppose that the rules of the Common Law of England are the common law of Connecticut, until altered by a statute.

Compare this to, “From the General Assembly of Virgina to the Senators from that State in Congress, January 11th, 1800:

THE General Assembly of Virginia would consider themselves unfaithful to the trust reposed in them, were they to remain silent, whilst a doctrine has been publicly advanced, novel in its principle and tremendous in its consequences: That the common law of England is in force under the government of the United States.  Deeply impressed with these opinions, the general assembly of Virginia instruct the senators, and request the representatives from this State, in Congress, to use their best efforts To oppose the passing of any law, founded on, or recognising the, principle lately advanced, ‘that the common law of England is in force under the government of the United States,’ excepting from such opposition such particular parts of the common law as may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; …. and excepting, also, such other parts thereof as may be adopted by Congress as necessary and proper for carrying into execution the powers expressly delegated.

Additionally, it was not until British Nationality Act of 1772 that a child, whose father was a British Subject, born abroad was given equal status as a natural-born subject (this done via act of parliament). Prior to that time, different laws were passed but they basically provided a route for naturalization, which as explained earlier did not have all rights attached to it.

Cf. Wong Kim Ark, 169 U.S. 649, Dissent by Chief Justice C.J. Fuller,

Whether it was also the rule at common law that the children of British subjects born abroad were themselves British subjects — nationality being attributed to parentage, instead of locality — has been variously determined. If this were so, of course, the statute of Edw. III was declaratory, as was the subsequent legislation.

But, if not, then such children were aliens, and the statute of 7 Anne and subsequent statutes must be regarded as, in some sort, acts of naturalization. On the other hand, it seems to me that the rule partus sequitur patrem has always applied to children of our citizens born abroad, and that the acts of Congress on this subject are clearly declaratory, passed out of abundant caution to obviate misunderstandings which might arise from the prevalence of the contrary rule elsewhere.

Section 1993 of the Revised Statutes provides that children so born are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.

Thus, a limitation is prescribed on the passage of citizenship by descent beyond the second generation if then surrendered by permanent non-residence, and this limitation was contained in all the acts from 1790 down. Section 217 provides that such children shall “be considered as citizens thereof.

The language of the statute of 7 Anne, c. 5, is quite different in providing that the children of all natural-born subjects born out of the ligeance of Her Majesty, her heirs and successors, shall be deemed, adjudged and taken to be natural-born subjects of this kingdom to all intents, constructions and purposes whatsoever.

In my judgment, the children of our citizens born abroad were always natural-born citizens from the standpoint of this Government. If not, and if the correct view is that they were aliens but collectively naturalized under the act of Congress which recognized them as natural-born, then those born since the Fourteenth Amendment are not citizens at all, [p715] unless they have become such by individual compliance with the general laws for the naturalization of aliens, because they are not naturalized “in the United States.”

By the fifth clause of the first section of article two of the Constitution, it is provided that:

No person except a natural-born citizen, or a citizen of the United States, at the time of the adoption of the Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.

In the convention, it was, says Mr. Bancroft, objected that no number of years could properly prepare a foreigner for that place; but as men of other lands had spilled their blood in the cause of the United States, and had assisted at every stage of the formation of their institutions, on the seventh of September, it was unanimously settled that foreign-born residents of fourteen years who should be citizens at the time of the formation of the Constitution are eligible to the office of President.

 “The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” Smith v. Alabama, 124 U. S. 465, 478 (1888)

. . . or, is it? Do we go so far as to extend that observation to include English law as authoritative precedent? No . . . foreign law is instructive and even persuasive, but it is not of value as precedent in the face of existing U.S. legislated Act.

 The following cite is from the Schneiderman case, in which an avowed and active communist’s recent naturalization was challenged, the plaintiff claiming the court erred being that Schneiderman’s politics belied his ‘attachment’ and ‘support’ the Constitution of the United States. Plaintiff demanded Schneiderman be ‘de-naturalized.’ (Note: 8 U.S.C. 1424 specifically denies visa and naturalization access to communists, and in my opinion Muslims as well.)

 Since 1790 Congress has conferred the function of admitting aliens to citizenship exclusively upon the courts. In exercising their authority under this mandate the federal courts are exercising the judicial power of the United States, conferred upon them by Article III of the Constitution. Tutun v. United States, 270 U.S. 568; holding that an application for naturalization is a ‘case’ and a final decision.
SCHNEIDERMAN v. UNITED STATES, 320 U.S. 118; 63 S. Ct. 1333;87 L. Ed. 1796 (1943)

Appendix A  —   Letters from Congressmen to Two Constituents

Dear Miss Xxxxxx:   Thank you for continuing to contact me regarding your concerns with the eligibility of President Barack Obama. I appreciate you clarifying your previous correspondence.    I have heard about the various concerns regarding President Obama’s qualification to be President of the United States. With respect to his place of birth, the White House and the state of Hawaii have issued statements substantiating that President Obama was born on August 4, 1961 in Honolulu, Hawaii; and I have not seen evidence to the contrary. You also specifically expressed your concerns that the President is using a dead person’s Social Security Number. Again, I have not seen any evidence which substantiates this claim and, despite my numerous disagreements with his policies, I do not believe that he is constitutionally ineligible for the office of the Presidency.    Again, thank you for taking the time to contact me. I appreciate having the opportunity to represent you in the U.S. House of Representatives. Please feel free to visit my website (www.house.gov/burgess) or contact me with any future concerns.

Sincerely,
Michael C. Burgess, M.D.
Member of Congress

Dear Mr. Xxxxxxx:

Thank you for informing me of your concerns regarding President Barack Obama’s citizenship.  Your thoughts on this important matter are most welcome and appreciated.

As you know, the United States Constitution, in Article II, Section I, establishes the principle qualifications an individual must meet to become President of the United States.  Specifically, the Constitution states “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.”  Additionally, the candidate must be at least thirty-five years of age and have been a resident in the United States for at least fourteen years.

On August 21, 2008, Mr. Philip J. Berg, an attorney filed suit against President Barack Obama, alleging he is not eligible for the Office of the President because President Obama lost his United States citizenship when his mother married an Indonesian citizen and naturalized in Indonesia.  Further, Berg alleged President Obama followed his mother’s naturalization and failed to take an oath of allegiance when he turned eighteen years old to regain his United States citizenship status.  In October of 2008 Pennsylvania Eastern District Court Judge R. Barclay Surrick dismissed the lawsuit Berg v. Obama, ruling Mr. Berg lacked standing to bring the case.  Thereafter, Berg filed an emergency motion with the United States Third Circuit Court of Appeals, where subsequently, Third Circuit Judge Thomas Ambro denied the motion.  Subsequently, Berg petitioned for a Writ of Certiorari, where if granted, the Supreme Court would review the decision of a lower court.  On December 10, 2008 the Supreme Court denied Berg’s petition for an injunction against the seating of the Electoral College.  On December 15, 2008, Berg re-filed the application for injunction.  Two days later, the petitioner’s appeal was denied without comment by Justice Anthony Kennedy.  On December 18, 2008, Berg’s request for an injunction was re-filed with the Court and was summarily denied on January 21, 2009.

Recently, on January 20, 2009, Barack Obama was sworn in as our nation’s 44th President. Nevertheless, Berg continues to assert President Obama lost his naturalized citizenship when he became a citizen of Indonesia after moving there as a boy.  Similarly, additional lawsuits have been filed requesting the birth certificate of our President.

Ultimately, under our Constitution the authority to make a ruling on this matter rests with the Supreme Court of the United States.  Rest assured, however, I will well remember your concerns regarding this issue during the 111th Congress.  Again, thank you for contacting me; and for all you do for our community and our country.  Should you have any further comments or questions on this or any other issue, please contact me at the Livonia or Milford district, or Washington, D.C. office.

I work for you.

Sincerely,
Thaddeus G. McCotter
Member of Congress

Appendix B 

“As such, the allegiance of parents whatever their situation is irrelevant in determining the citizenship status of a child born in the United States. At common law, a native is a person born within the jurisdiction and allegiance of a country, irrespective of the allegiance of his parents, except the child of an ambassador.” Ex parte Palo, 3 F. 2d 44, 45 (W.D. Wa 1925)

The court in Luria vs. United States, 231 US 9 (1913) noted: “Under our Constitution, a NATURALIZED CITIZEN stands on an equal footing with the NATIVE CITIZEN in all respects, save that of eligibility to the Presidency. (emphasis added)

I do not find warrant in the Constitution for believing that it contemplates two classes of citizens, excepting only for two purposes. One is to provide how citizenship shall be acquired, Const., Art. I, § 8; Amend. XIV, § 1, the other to determine eligibility for the presidency. Const., Art. II, § 1. The latter is the only instance in which the charter expressly excludes the naturalized citizen from any right or privilege the native-born possesses. Knauer vs. United States, 328 US 654, 677 (1946) (Rutledge, J, dissenting)

Fisher vs. U.S., 425 U.S. 391 (1976) – “The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted.”

Colgrove vs. Battin, 413 U.S. 149 (1973) – “(I)t is common sense and not merely the blessing of the Framers that explains this Court’s frequent reminders that: ‘The interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the Emglish common law, and are to be read in the light of its history.’”; quoting Smith vs. Alabama, 124 U.S. 465, 478 (1888)

Ex parte Grossman, 267 U.S. 87 (1925) – “The statesmen and lawyers of the Convention who submitted it to the ratification of the Convention of the Thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.”

Kepner vs. U.S. – 195 U.S. 100 (1904) – “In this, as in other respects, it [a constitutional provision] must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.”

Ex parte Wells, 59 U.S. 307 (1855) – “Now, no principle is better settled than that for the definition of legal terms and construction of legal powers mentioned in our constitution and laws; we must resort to the common law when no act of assembly, or judicial interpretation, or settled usage, has altered their meaning.”

Viewed against the background of history and the context of the times, it is not surprising that the men who drafted the Constitution equated “citizen” and “subject”. Until the Colonies had successfully won their freedom from England, their inhabitants were subjects of the King. With the birth of the United States, the sovereignty that had previously been that of one man,—the King,—was transferred to the collective body of the people. Those who had been subjects of the King were now citizens of the State. Van Der Schelling vs. US News & World Report, Inc., 213 F. Supp. 756 ,761 (ED PA 1963)

Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.” 2 Kent Com. 258. Medvedieff vs. Cities Service Oil Co., 35 F. Supp. 999, 1002 (SD NY 1940)

The Supreme Court of North Carolina in State v. Manuel, 4 Dev. & Bat. 20, 26, (quoted in United States vs. Wong Kim Ark, 169 U.S. 649,) said: “The term `citizen,’ as understood in our law, is precisely analogous to the term `subject’ in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people; and he who before was a `subject of the King’ is now `a citizen of the State.'” Hennessy vs. Richardson Drug Co., 189 US 25, 34 (1903)

“We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, that the place of birth governs citizenship status except as modified by statute.” Rogers vs. Bellei, 401 US 815, 838 (1971)

“The very learned and useful opinion of Mr. Justice Gray, speaking for the Court in United States v. Wong Kim Ark, 169 U.S. 649, establishes that, at common law in England and the United States, the rule with respect to nationality was that of the jus soli, — that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute:” Weedin vs. Chin Bow, 274 US 657,660 (1927)

“The ancient and indisputable citizenship rule of the British common law was the jus soli, under which a person’s nationality is determined by the place of his birth…. It is clear, of course, that the American colonies and the nation they ultimately established had accepted the precepts of the English common law, as part of the heritage from the mother country.” Cong. Globe, 39th Congress, 1st Sess. 1262 (1866) (Congressman Broomall).

Galaviz vs. Bridgestone Corp. (N.D. Tex. 2008), the court noted that two minor children, born in Texas of Mexican parents, were “natural born citizens” of the United States due to their birth in Texas, even though they lived in Mexico since birth and had no intention of returning to the U.S.

Of course there is Ankeny vs. Governor of State of Indiana (Ind. App. 2009), which specifically addressed President Obama’s eligibility and held that “persons born within the borders of the United States are ‘natural born Citizens’ for Article II, Section 1 purposes.”

In State vs. Superior Court of Washington for King County (Wash. 1920), the Washington Supreme Court noted that a “natural born citizen’s right to vote depends upon HIS PLACE OF BIRTH” (emphasis added) and a few sentences later the court used the term “native born citizen” in place of “natural born citizen.”

In Town of New Hartford vs. Town of Canaan, (Conn. 1886), the Connecticut Supreme Court noted that “In Rawle’s View of the Constitution of the United States (page 86) it is said: ‘Every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural-born citizen within the sense of the constitution, and entitled to all the rights and privileges appertaining to that capacity.’”

“‘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,’ &c. The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected president who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen.” Lynch vs. Clarke, 3 N.Y. Leg. Obs. 236 (Chancellery Court of N.Y. 1844)

“The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” Smith vs. Alabama, 124 U. S. 465, 478 (1888)

“The common law spoken of was, of course, the law of England as it existed at the time of the colonial settlements — “a system of unwritten law, not evidenced by statutes, but by tradition and the opinions and judgments of the sages of the law. Morgan v. United States, 13 F. 2d 763, 764 (4th Cir. 1926)

Appendix C — What in the Hell was Justice Gray thinking, in Wong Kim Ark?

When I became intrigued with the reliance of the court on English jus solis, when existing law provided naturalization of children of aliens upon naturalization of their parents or formal application when reaching twenty-one years of age, I assumed Justice Gray ignored the Uniform Naturalization Acts.

It had been some time since reading Ark, so I did several searches using ‘1795 Naturalization Act’, and various strings using the formal citation, coming up with nothing.

Notice, however, how Gray cites legislative Act in Ark: “Acts of March 26, 1790, c. 3; January 29, 1795, c. 20; June 18, 1798, c. 54; 1 Stat. 103, 414, 566; April 14, 1802, c. 28; March 26, 1804, c. 47; 2 Stat. 153, 292; February 10, 1854, c. 71; 10 Stat. 604; Rev.Stat. §§ 2165, 2172, 1993.”

“Second. Children of persons so naturalized, “dwelling within the United States, and being under the age of twenty-one years at the time of such naturalization.”” Justice Gray in Wong Kim Ark; citing the Naturalization Act.

So, I was shocked that Gray dismissed legislated Act in favor of his judicial theories relying on jus solis. (Indeed, further reading shows English law to be more complicated than Gray assumed. There are two types of English citizens, as I discussed in the above article. One, ‘by descent,’ and two, ‘otherwise than by descent.’ Both English citizenships required an English father, but being born within English dominion enhanced citizenship rights.

Then, he says, “Here is nothing to countenance the theory that a general rule of citizenship by blood or descent has displaced in this country the fundamental rule of citizenship by birth within its sovereignty.”

Forgive me, but that makes absolutely no sense generally; and the conclusion of favoring a ‘fundamental’ rule of jus solis versus the ‘general rule’ of descent, especially when that general rule is specified in the Act, as quoted above, is a leap of logic more suited to an Escher print.

Back to the question at hand in Ark, Ark was denied citizenship by treaty and legislated Act, that Act barring Ark’s parents and therefore himself from naturalization. The Supreme Court had jurisdiction over the Treaty, but needed congress to follow its lead in eliminating the Cooley Act’s absolute ban on Chinese immigration. After all, Congress could limit immigration for purposes of balance, but not ban Chinese altogether. Indeed, the limitation of immigration to the 1790 Act’s ‘Protestant White Men’ was superseded by ‘men of good character’ and the Reconstruction Act’s inclusion of blacks.

It is that simple fact that should have motivated the Supreme Court to remand the issue to the ‘lower court’ of proper jurisdiction, which was congress. Instead, Gray made a fundamental change to all U.S. immigration law.


[1] New Mexico Secretary of State Mary Herrera admitted 82,000 NM drivers licenses were issued to non-citizens, making them eligible to vote. In 2008, Barack Hussein Obama won New Mexico’s five electoral votes by 11,599 votes. See also http://politifact.com/truth-o-meter/statements/2010/sep/09/susana-martinez/richardson-denish-administration-gave-50000-driver/ (‘Politifact’ is a Pulitzer Prize winning Florida news source.)

[2] https://paraleaglenm.wordpress.com/2010/01/21/a-timeline-of-barack-hussein-obamas-nationality-and-citizenships/

[3] See Appendix B for selected citations of case law.

[4] See Appendix B for selected citations of case law.

[5] “The children of aliens, born here in England, are, generally speaking, natural-born subjects.” ‘Commentaries on the laws of England: in four books,’ p 232, William Blackstone (1723-1780)