I’m afraid that I made a legal error in a conversation I had with a Chicago Tribune reporter several weeks ago, and the error understandably made its way into print. Now that I realize I’ve made this error, I need to try to correct it. Just to make things clear up front, I have no reason to doubt that President-Elect Obama was born in Hawaii, and is therefore a natural-born citizen. The legal issue I discussed here is a based on the purely hypothetical question of what would be the law if President-Elect Obama were not born within the U.S. Nonetheless, I commented on this hypothetical question, in a way that I now believe was incorrect, so I think I need to correct my error.
The relevant passage is in a Chicago Tribune story from Oct. 30, 2008:
Any person born in the U.S. automatically is a “natural born citizen,” said University of California Los Angeles law professor Eugene Volokh.
Even if a person is born outside the United States, ... [a]t the time Obama was born, the law stated that a person would be considered a “natural born citizen” if either parent was a citizen who had lived at least 10 years in the U.S., including five years after the age of 14 — in other words, 19.
Dunham was three months shy of her 19th birthday when Obama was born. But subsequent acts of Congress relaxed the requirement to five years in the U.S., including just two years after the age of 14, meaning Dunham could have been 16 and still qualified even if Obama was born in another country, Volokh said. Congress made the law retroactive to 1952, doubly covering Obama.
Any legal challenge would have to argue that Congress can’t make someone retroactively a citizen at birth, and prove Obama was born outside of the U.S. after all.
My error came in misreading the last sentence in 8 U.S.C. § 1401(g):
(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 or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of Title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 288 of Title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date;
I foolishly read the last sentence as applying to the entire provision, § 1401(g); but the last sentence refers to the “proviso,” and thus just to the clause that begins with “Provided.” Public Law 89-770 enacted both the “Provided” and the last sentence mentioning the “proviso,” without repeating the first clause — this supports the view that the “proviso” refers only to the “Provided” clause.
Moreover, the change to “at least two of which were after attaining the age of fourteen years” was made by Public Law 99-653, Nov. 14, 1986, which was enacted after the “Provided” clause and the last sentence were added: “SEC. 12. Section 301(g) (8 U.S.C. 1401(g)) is amended by striking out ‘ten years, at least five’ and inserting in lieu thereof ‘five years, at least two.’” Two years later, the Immigration Technical Corrections Act of 1988, Public Law 100-525, Oct. 24, 1988, provided:
(r) EFFECTIVE DATES. — INAA [the Immigration and Nationality Act Amendments of 1986 (Public Law 99-653)] is further amended by adding at the end the following new section:
“(d) The amendment made by section 12 shall apply to persons born on or after November 14, 1986.
So, as I now read 8 U.S.C. § 1401, “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” before Nov. 14, 1986 is a natural-born citizen only if the citizen parent “was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years” — the same rule that was in place in the early 1960s. See also United States v. Flores-Villar, 497 F. Supp. 2d 1160, 1162-64 (S.D. Cal. 2007) (taking the same view and concluding the change from ten years/five years to five years/two years only applied to people born after 1986), aff’d, 536 F.3d 990 (9th Cir. 2008) (so assuming but not discussing it in detail); Rico-Ibarra v. Mukasey, 281 Fed. Appx. 694, 695 n.1 (9th Cir. 2008) (not precedential).
I stress again that I post this only to correct what I now think was my legal error. I am certainly not trying to assert that this law even applies on the actual facts (as opposed to the hypothetical discussed at the end of the newspaper article).
Please let me know whether my correction is itself incorrect, though I hope I’ve gotten it right this time.