by Joseph DeMaio, ©2021

(Jun. 17, 2021) — As your humble servant’s favorite former Democrat, Ronald Reagan, quipped when debating and dismantling Water Mondale’s doomed 1980 presidential campaign: “There you go again…”  President Reagan’s timeless observation has renewed relevance as your servant composes this response to comments from “Wilson” and “Luke” regarding the matters set out here.

Specifically, both Wilson and Luke seem disturbingly fixated on the assertion made by your servant that no federal district court or circuit court of appeal decision exists which properly analyzes and substantively explains why a native born “citizen” under the 14th Amendment is the equivalent of a “natural born Citizen” as required by Art. 2, § 1, Cl. 5 of the Constitution. 

Wilson claims that “if one desires federal authority [on the point], there is always Tisdale v. Obama, No. 12-00036 (E.D. Va. 2012), aff’d, 473 F. App’x 203 (4th Cir. 2012).”  Luke chimes in with a lengthy cut-‘n-paste of the Tisdale district court “order” (ahem… not a “judgment”…), including all of its typos, mis-citations and ellipsis omissions, before offering: “Hope this is helpful to you and Mr. Laity.  Since Vice President Harris was born in California, it appears likely the decision in Laity v. Harris will yield the same result, given the underlying premise of Mr. Laity’s claim.” 

Given the shallow analysis of Tisdale heretofore rendered by most courts, Luke’s prediction will probably come to pass…, an event not to be confused with being the correct one.  Faithful P&E readers, insert here President Reagan’s timeless quote, then proceed with the rest of this offering.

First, neither the Wilson nor Luke comments note that the two rulings in Tisdale – the Jan. 23, 2012 “order” of dismissal by Judge John Gibney, Jr. of the Eastern District of Virginia District Court or the June 5, 2012 opinion of the Fourth Circuit – are unreported or unpublished opinions. 

Indeed, emblazoned across the top of the first page of the Fourth Circuit appellate review opinion is the capitalized and underlined word “UNPUBLISHED.”  Of greater significance, preceding the actual text of the “per curiam” (“no-judge-wants-his/her-name-to-appear-on-it”) opinion is the additional caveat from the court: “Unpublished opinions are not binding precedent in this circuit.”  Some might argue that this is a relevant restriction worthy of notice …, no?  Others…, not so much. 

Second, apart from the fact that Judge Gibney was appointed by Barack Hussein Obama, Jr.; and apart from the fact that Judge Gibney did not recuse himself; and apart from the fact that Fourth Circuit Judges Robert King (a Clinton appointee), Allyson Duncan (a Bush II appointee) and Judge Albert Diaz (an Obama appointee) did not recuse on the appeal of Judge Gibney’s “order;” and apart from the fact that the Fourth Circuit unpublished decision finds “no reversible error” in affirming the dismissal “for the reasons stated by the district court,” according to the Wilson and Luke comments, the results in Tisdale should be sufficient “federal authority” to establish that a 14th Amendment “citizen” is the equivalent of an Art. 2, § 1, Cl. 5 “natural born Citizen.” 

This, faithful readers, is what now passes for in-depth analysis of the eligibility issue.  Nonsense.

To begin with, the Wilson and Luke comments extoling the Tisdale rulings would not (or should not) pass muster with even a first-year law school dropout…, depending, of course, on the pedigree of the law school.  One need look no farther than the Fourth Circuit’s declaration that “[u]npublished opinions are not binding precedent in this circuit” to understand that its “per curiam” ruling – both adopting and affirming Judge Gibney’s “order” of dismissal – does not constitute binding precedent.  One is tempted to ask whether Wilson and Luke have access to competent optometrists.

And while the per curiam Fourth Circuit Tisdale opinion qualifies the limited scope of “unpublished opinions” in the Fourth Circuit, the Wilson and Luke comments seem to presuppose that, while not binding in the Fourth Circuit, somehow the opinion should be accorded binding “federal authority” precedential weight everywhere else in the United States, from the U.S. Supreme Court on down to, for example, administrative law judges and hearing officers in New Jersey and Pennsylvania? Really?

Moreover, by adopting the “reasoning” of the Tisdale district court’s dismissal order, the Fourth Circuit opinion also unavoidably adopts – and thus falls victim to — its errors and omissions.  The district court’s typographical errors and mis-citations, while not substantive, are bothersome and suggest something short of a careful and analytical attention to detail normally expected of U.S. district court judges. 

Specifically, the title of the Supreme Court case is “United States v. Wong Kim Ark,” not “United States v. Ark.” The title of the federal court of appeals case is “Perkins v. Elg,” not “Perkis v. Elg.”  And the complete citation to the Elg case should include reference to its modification and affirmation on appeal by certiorari in the U.S. Supreme Court: Perkins v. Elg, 307 U.S. 325 (1939).

As to the U.S. Supreme Court decision in Perkins v. Elg, faithful P&E readers will recall (not sure about Wilson or Luke) that the linguistic chicanery via ellipsis omission by the Congressional Research Service (“CRS”) of a critical date in the actual Elg reported opinion – discussed in detail by your humble servant here and here – and its magical reappearance years later here – may have contributed in no small measure to the likely false conclusion that Barack Hussein Obama, Jr. was, purportedly, a “natural born Citizen” eligible to the presidency. 

And, by the way, both Marie Elg and Steinkauler the Younger, major players in the Elg decision, were natural born Citizens, despite the efforts of the Congressional Research Service to portray them as merely “native born” offspring of foreign national parents nonetheless eligible to the presidency.  Who knew?  If you were a P&E reader, the answer was clear: you knew.

On a more substantive note – reader alert, including Wilson and Luke: reach for a caffeinated beverage, as what follows is a bit convoluted – the district court Tisdale ruling adopted and affirmed by the Fourth Circuit alters the language of the quote it partially extracts from Hollander v. McCain, 566 F. Supp. 2d 63, 66 (D.N.H. 2008).  The alteration is subtle, but significant. 

Specifically, the Tisdale district court order quotes from the Hollander decision thusly: “those born ‘in the United States, and subject to the jurisdiction thereof,’ … have been considered American citizens under American law in effect since the time of the founding … and thus eligible for the presidency.”  Here, the district court’s order ends the sentence being attributed to Hollander with a “period” rather than the “comma” which appears in the original Hollander opinion.  Stated otherwise, the Tisdale order cites and partially quotes Hollander, but leaves off the citation to Schneider v. Rusk, 377 U.S. 163 (1964).

Schneider makes it clear that with regard to the preceding portion of its quote – omitted from the Tisdale district court ruling – although a native-born person is a “citizen” by virtue of the 14th Amendment, that person does not stand on the same footing as a “natural born” citizen when the issue is that of presidential (or, via the 12th Amendment, vice-presidential) eligibility.  Recall as well that while all natural born Citizens are also, by virtue of their birth here, “native-born” citizens, not all native-born citizens are “natural born” citizens.  Think Venn diagrams.  This is the unambiguous teaching of Schneider.

In fact, the complete quote from Hollander – without the ellipsis omissions and the “comma-to-period” alteration found in the Tisdale dismissal order – reads as follows: “Those born ‘in the United States, and subject to the jurisdiction thereof,” U.S. Const., amend. XIV, have been considered American citizens under American law in effect since the time of the founding, United States v. Wong Kim Ark, 169 U.S. 649, 674–75, 18 S.Ct. 456, 42 L.Ed. 890 (1898), and thus eligible for the presidency, see, e.g., Schneider v. Rusk, 377 U.S. 163, 165, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964) (dicta).” 

The critical part of the above quoted actual language from the Hollander opinion is the parenthesized word “(dicta)” following the “see, e.g.” reader signal directing attention to the Supreme Court decision in Schneider.  As astute P&E readers are well aware, “dicta” are side comments made by a court having no impact or bearing on the actual “holding” of a court on the facts coming before it.

If one goes to the original Schneider decision, one finds that the Supreme Court there held: “We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President. Art. II, s [§ ] 1.” (Emphasis added) 

The Schneider Court then goes on to state: “While the rights of citizenship of the native born derive from s [§] 1 of the Fourteenth Amendment and the rights of the naturalized citizen derive from satisfying, free of fraud, the requirements set by Congress, the latter, apart from the exception noted, ‘becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native.  The [C]onstitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual.’” (Citations omitted, emphasis added). 

While Congress can “naturalize” persons to become U.S. “citizens,” only the Constitution controls who can be – and who cannot be – a “natural born Citizen.”  It is that simple.

It is therefore clear that the Court in Schneider articulated the proposition that, insofar as the “citizenship” of persons born in the United States is concerned, that status derives from the 14th Amendment and not from Art. 2, § 1, Cl. 5, the presidential eligibility clause.  It is also noteworthy that, in eliminating reference to the 14th Amendment in its “quote” from Hollander, the Tisdale district court dismissal order suggests that the right of “citizenship” which had existed “since the time of the founding” had a source other than the 14th Amendment, which did not come into existence until 1868, nearly a full century after the “founding.”

That source would have included the congressional “naturalization” law enactments of 1790 (1 Stat. 103) and 1795 (1 Stat. 414) and which enactments, it must be remembered, were plainly misinterpreted and misapplied by Justice Horace Gray, author of the Wong Kim Ark opinion, as discussed and analyzed here

In this regard, remember that Schneider holds that while a “naturalized” citizen is in all respects entitled to U.S. “citizenship,” he/she is ineligible to serve as president because he/she is not a “natural born Citizen” as required by the Constitution.  The 14th Amendment does not alter this fact, as discussed here and here.

While § 212 of Emmerich de Vattel’s treatise, The Law of Nations, identifies who is, and who is not a “natural born Citizen” – a definition seemingly clearly ratified by the Supreme Court in Minor v. Happersett, 88 U.S. 162, 167-168 (1875), abrogated by the 19th Amendment (1920) – there is no such thing as “natural born citizenship.”  Recall once again that all natural born Citizens are also native born citizens, but not all native born citizens are natural born Citizens, and that the natural born Citizen alone is eligible to the presidency. 

A person merely born here – regardless of parental nationalities and except for foreign diplomatic personnel and hostile occupying forces – enjoys U.S. “citizenship” as a “citizen.”  This is the exclusive holding of the Wong Kim Ark case.  All other discussions of “natural born citizens” therein “are dicta, pure and simple.”  See C. Gordon, “Who Can Be President of the United States: The Unresolved Enigma,” 28 Md. Law Rev. 1, 19 (1968).

At the time he wrote his article, Charles Gordon was the General Counsel, U.S. Immigration and Naturalization Service, and Adjunct Professor of Law, Georgetown University Law Center.  Even the court in Hollander cited Charles Gordon’s work in reaching its conclusions.  While “dictum” in a case may be interesting, it is neither “holding” nor “precedent,” and those who contend that Tisdale or Wong Kim Ark “settle” the eligibility question are, respectfully, wrong.  Just as there is no such thing as “natural born citizenship,” there is no such thing as “precedential dictum.”

Stated otherwise, the Schneider holding establishes that, regardless of parental citizenship, one merely born here does not thereby accede either to status as a “natural born Citizen” or to a condition of “natural born citizenship.”  That term is in itself a CRS-favored neologism, as discussed here.  Indeed, while the terms “citizen” and “citizens” appear in both the Constitution and the 14th Amendment, nowhere in either of those documents does the term “citizenship” appear.

Therefore, why the district court in Hollander chose to characterize the Supreme Court’s “we start from the premise” language in Schneider as “dicta” remains to be seen.  When a U.S. Supreme Court opinion begins by articulating an undisputed, bedrock principle upon which the balance of the opinion rests, a pretty good argument can be made that the statement is not dictum. 

That anomaly aside, when the Tisdale district court judge changed the actual “comma” to a “period” and thereafter omitted the Schneider language above supplied from the original Hollander quote, the district court order frustrated a complete analysis of what both the Hollander and Schneider decisions mean.  Inadvertent?  Perhaps.

Third, and as the final “nail in the coffin” of the purported “precedential” or “controlling” import of the Tisdale rulings – the Fourth Circuit’s “not binding precedent” caveat aside – both of the Tisdale rulings rely upon Hollander for the claim that it settles the presidential eligibility issue.  Sorry, Wilson; sorry, Luke: wrong. 

In fact, as stated in the opinion itself, 566 F. Supp. 2d at 65 (forgive the lengthy quote): “Fred Hollander, proceeding pro se, brings this action challenging Senator John McCain’s eligibility to serve as President of the United States. Hollander claims that McCain, by virtue of his birth in the Panama Canal Zone—albeit to American parents—is not a “natural born Citizen” eligible to hold the office of President under Article II, § 1 of the Constitution.  Though McCain and his co-defendant, the Republican National Committee (“RNC”), vigorously dispute this claim, they argue that this court cannot decide it in any event due to a number of jurisdictional defects: lack of standing and ripeness, mootness, and nonjusticiability. The defendants also argue that Hollander has failed to state a claim for relief because (1) they are not state actors, so Hollander cannot maintain any constitutional claim against them and (2) in any event, any remedy for it would necessarily violate their own First Amendment rights.” (Emphasis added)

The court then stated, and with particular relevance to the Wilson and Luke comments that Tisdale, relying on Hollander, constitutes federal “authority” supposedly “settling” the issue: “This court held a hearing on the defendants’ motion to dismiss this action on those grounds [i.e., standing, ripeness, mootness, etc.] on July 24, 2008.  Based on the arguments presented there, as well as in the parties’ briefing, the court rules that Hollander lacks standing to bring this action. The court does not reach the rest of the parties’ arguments, including, most notably, the question of McCain’s constitutional eligibility to be President. (Emphasis added)

There is another word to describe the pontifications in Hollander, repeated and adopted in Tisdale, regarding the issue of presidential (and vice-presidential) eligibility under the Constitution: dicta, pure and simple. 

Accordingly, for Wilson, Luke and all others smitten by the stellar intellect and reasoning in the Tisdale and Hollander rulings: nice try…, no cigar.

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  1. We have been dealing with the far-left slow-roll strategy of Antonio Gramsci to bring down the western democracies including the USA for a long time. Key institutions have been infiltrated and controlled by the far-left organic intellectuals and permanent persuaders, as Gramsci called them, under the Marxist plan which Gramsican gradualists call “The Long March Through the Institutions.” They’ve been at it for generations for the last 100 years and are at the apex of their hegemony in the institutions and thus control virtually all of our national institutions. If Trump had not won the election they would have come forward and out of the woodwork and totally taken over under Clinton and moved the nation at a quicker pace to a Socialist one, which status to the Communists is a temporary state, and just one more step towards Communism, which end state they believe is a Utopian form of government. They must be stopped now. We need to learn more about the enemy within and their tactics, projects, and strategy. Know thy enemy! Read what Jeff Carlson summarized. I’ve read lengthy works about Gramsci and what Jeff Carlson summarized about Gramsci is excellent. See: https://cdrkerchner.wordpress.com/2020/10/13/gramsci-alinsky-the-left-by-jeff-carlson/

    The article excerpted and linked to above by Jeff Carlson is spot-on about Gramsci and a good summary of Gramsci’s long-term political agenda to bring socialism and communism to the western democratic nations. Modern “Progressives” believe in and use his tactics and strategy all the time. And they know what they are “progressing” towards … Socialism … and then in the very long-term Communism. Learn what Jeff Carlson is sharing in his article and spread it to your friends and associates and anyone and everyone who needs to learn that what we see is happening in our country, and the co-opting and destruction of our institutions and changing the meaning of words in our language, is not an accident. Gramsci was educated as a linguist. He advocated the manipulation of language to further political goals. What we are experiencing is the result of the Gramscian long-term plan all along. We are just the generation in which we see it coming to full fruition and a head.

    What we are feeling and seeing now, that we know something is wrong in our country, we can all now understand that it has has a name “Gramscism”. It’s “progress” must be stopped before it is too late. President Donald Trump must be re-elected. They tried to cripple him in his first term at every step. Now he knows what he’s up against. He will be the only one with enough power, authority, and courage to take them on if he gets a second term. Give him the opportunity to save our constitutional republic. Re-elect Donald Trump.

    “The American people will never knowingly adopt Socialism. But under the name of ‘liberalism’ they will adopt every fragment of the Socialist program, until one day America will be a Socialist nation, without knowing how it happened.” ~ Norman Thomas ~ Source: http://libertytree.ca/quotes/Norman.Thomas.Quote.FFB1

    CDR Charles Kerchner, P.E. (Retired) — http://www.ProtectOurLiberty.org and https://cdrkerchner.wordpress.com/tag/antonia-gramsci/

  2. If anyone wants to read what I wrote about the Tisdale decision, you can read my blog post dated February 16, 2012, entitled “
    Tisdale v. Obama and the “Natural Born Citizen” Clause, found at
    http://puzo1.blogspot.com/2012/02/tisdale-v-obama-and-natural-born.html

    What is amazing about Tisdale is that the Court dismissed the case on the same day that the pro se plaintiff filed his complaint, January 23, 2012, by simply filing an Order. The docket of the court even has the Court’s dismissal order of January 23, 2012, as Document 2 while the complaint which was also filed on January 23, 2012, is listed as Document 3. So, the Court did not even wait for the court clerk’s office to upload the complaint to the court’s website or for the defendants to file an answer or a motion to dismiss for lack of standing or based on some other defense. Rather, the Court simply on its own on January 23, 2012 (the same day the complaint was filed which I presume was done either in person or by mail and not electronically) dismissed the complaint for what is written in the complaint, not even giving the pro se plaintiff the chance to brief the legal issue of the meaning of a “natural born Citizen.” The Court dismissed the complaint so quickly that the defendants did not even have to argue that the plaintiff does not have standing. The court’s sudden actions also leave us thinking how much research and thought did the court put into its dismissal order which is based on the definition of an Article II “natural born Citizen,” a definition which in the eyes of the Founders and Framers has monumental and critical importance to the survival and preservation of the constitutional republic. The Court did not render any comprehensive decision. This Order is not a published precedential decision, and Obama’s supporters surely keep that fact out of the public discussion.

    On January 24, 2012 (the next day after the dismissal), pro se plaintiff filed a Notice of Appeal to the 4th Circuit Court of Appeals. I filed amicus curiae brief to the 4th Circuit. The 4th Circuit “Affirmed by unpublished per curiam opinion.” See No. 12-1124. The Court simply stated that it found no reversible error in the lower court decision. It did not reach the merits of the meaning of a natural born citizen or whether Barack Obama was a natural born citizen.

    The bottom line is that all the commenters’ massaging here cannot change the fact that Tisdale is a poorly reasoned and supported decision of our courts and is not a presidential decision on the meaning of a natural born citizen.

    1. If the 4th Circuit believed Obama was not a natural-born citizen, it would have reversed the district court’s dismissal of Tisdale’s lawsuit. But it didn’t reverse.

      Exactly no one has said that Tisdale was precedential. But a federal court in Ohio in dicta found it to be persuasive. Just as courts outside of Indiana have found Ankeny to be persuasive. No court has criticized the reasoning or results in either Ankeny or Tisdale.

        1. This article touches on how others can and have actually read Tisdale. The article says that Tisdale is not binding authority, which is true but also not in dispute.

          Tisdale may be persuasive authority, and it in fact did persuade a federal court in Ohio to conclude that anyone born in the United States is a natural-born citizen. So at least one federal judge believes Tisdale says just that.

    2. “The Court did not render any comprehensive decision.”

      Didn’t the Court in Tisdale cite the Wong Kim Ark decision? If the judge believed he was bound by that precedent how much more research would he need?

      He did call it settled law.

      1. The first glaring omission in Tisdale is that it did not ask the question of whether a person born in the United States to alien parents, who becomes a “citizen” of the United States only by virtue of the Fourteenth Amendment and not by virtue of the common law, is also an Article II “natural born citizen” of the United States. Any court relying on Wong Kim Ark for what you suggest has to ask and answer that question.

        1. Obama was not born to alien parents, so it is good Tisdale didn’t ask that irrelevant question.

          Regardless, every other court that addressed an eligibility challenge on the merits considered Wong Kim Ark and concluded that those born in the United States are natural-born citizens. So the Tisdale court joined every other court that engaged in this analysis and came to this conclusion.

        2. Henry Wilson said: “Obama was not born to alien parents, so it is good Tisdale didn’t ask that irrelevant question.” So, first, your kind says that “parents” means one parent and now you say it means two parents. Can we know which one it is?

          Or, are you saying that if Tisdale would have asked if being born to one alien parent disqualifies one from natural born citizen status that would have been a relevant question?

        3. I have no idea who Apuzzo believes is my “kind” or why he believes I can speak for a group of people.

          Regardless, Obama’s mother was a U.S. citizen, so any question about those with no citizen parents would not have been relevant to Tisdale’s case.

          And the district court’s clear ruling that “those born in the United States are considered natural born citizens” does not suggest the district court believed the number of citizen parents was relevant.

        4. Judge Gibney didn’t need to ask that question because it was answered in Wong Kim Ark.

          “The foregoing considerations and authorities irresistibly lead us to these conclusions: The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.”

          It was this “ancient and fundamental rule of citizenship” that made as Jefferson phrased it “persons natural born.”

        5. The plaintiff in Tisdale argued that Obama was not a natural born citizen because, while born in the U.S., he was not born to U.S. citizen parents. He explained, and correctly so, that Obama could therefore be a “citizen” of the United States under the Fourteenth Amendment, but not an Article II “natural born citizen” of the United States.

          You say that Judge Gibney, because of the ancient rule of the English common law, did not have to address the question of the citizenship of Obama’s parents. Well, then, Judge Gibney did not address plaintiff’s argument and therefore rendered a worthless opinion.

        6. “Worthless” is poor hyperbole: while anyone can disagree with a judge’s ruling, the ruling nonetheless ended the lawsuit. The worth was ending a baseless lawsuit.

          And the 4th Circuit affirmed the dismiss, so it too saw worth.

        7. The Judge said it was settled law. There was no need to go into a detailed explain of Tisdale theory.

          Recently the 10th Circuit Court of Appeals said Wong Kim Ark use of English Common Law to define citizenship is persuasive authority.

          “Instead, Wong Kim Ark instructs us that the Citizenship Clause, as with the rest of the Constitution, “must be interpreted in the light of the common law.” 169 U.S. at 654. We take the general meaning of “in the light of” to mean “in context, through the lens of, or taking into consideration.” It is a phrase that introduces persuasive, not binding, authority. Wong Kim Ark therefore tells us to consider the common law in hopes that it sheds light on the constitutional question before us. It does not incorporate wholesale the entirety of English common law as governing precedent.”

          https://www.ca10.uscourts.gov/?q=opinion/search/results&query=Fitisemanu

        8. You fail to answer the Article II natural born citizen question by telling us all about the Fourteenth Amendment and how Wong Kim Ark used the English common law to inform on the meaning of “subject to the jurisdiction.” When the Framers wrote the natural born citizen clause, there was no Fourteenth Amendment. So by what logic do you impose a meaning upon the natural born citizen clause based on a constitutional amendment that did not exist at the time of the clause’s drafting and that does not even mention the clause?

        9. The U.S. Supreme Court in Wong Kim Ark said the 14th Amendment was declaratory of existing law.

          Which is why courts such as the Tisdale courts had no problem considering Wong Kim Ark, applying it to the eligibility challenges before them, and dismissing those challenges.

  3. “We start from the premise that the (A) rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. (B) The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President. Art. II, s [§ ] 1.”

    Breaking that down, we see that sentence (A) says that native born citizens and naturalized citizens have the same rights. Sentence (B) says the only difference between native born citizens and naturalized citizens is that natural born citizens can be President. These sentences only make sense if native born and natural born mean the same thing.

    One can find dozens of 19th century references to the President must be a native-born citizen including these from members of Congress. Here are several Court statements and several statements by members of Congress. They seem to believe native born and natural born are equivalent.

    “Except for eligibility to the Presidency, naturalized citizens stand on the same footing as do native-born citizens.” United States v. Schwimmer, 279 U.S. 644 (1929)

    https://supreme.justia.com/cases/federal/us/279/644/

    “The alien, when he becomes a naturalized citizen, acquires, with one exception, every right possessed under the Constitution by those citizens who are native-born (Luria v. United States, 231 U. S. 9, 231 U. S. 22), but he acquires no more.” United States v. Macintosh, 283 U.S. 605 (1931)

    https://supreme.justia.com/cases/federal/us/283/605/

    “ …in order to be president of the United States a person must be a native-born citizen” Senator Trumball, 1871

    https://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=099/llcg099.db&recNum=690

    “The Constitution requires that the President must be a native-born citizen of the United States. No one wishes to change that.” Senator Sherman

    http://lcweb2.loc.gov/ll/llcg/086/0200/02871035.tif

    “Here at home our laws know no distinction between the rights of the native-born and naturalized citizen, except in two particulars, that the President and Vice-President must be native-born” Rep. Clarke, 1868

    https://memory.loc.gov/ll/llcg/080/0000/00851105.tif

    “The Constitution of the United States provides that no person but a native-born citizen of the United States, with other qualifications as to age and residence, shall be President of the United States” Senator Williams, 1866

    https://memory.loc.gov/ll/llcg/070/0600/06790573.tif

    “ …the Constitution provides that certain persons should not be voted for as President of the United States. No one who is not a native born citizen of the United States, or who was not a citizen at the time of the adoption of the Constitution, can be voted for.” Senator Johnson 1865

    https://memory.loc.gov/ll/llcg/068/0500/05540552.tif

  4. DeMaio wanted federal rulings; DeMaio received federal rulings. DeMaio did not specify only published rulings. That they were not published was obvious enough by the citation to Federal Appendix, and not the official Federal Reporter. Contrary to this article’s innuendo, there was no suggestion that these federal cases were binding authority.

    But court rulings, even if not published, always are binding on the parties before the court. And these federal rulings are consistent with the state courts’ rulings on this issue, including Ankeny, which was published and is precedential law in Indiana.

    The Tisdale rulings add to the mosaic; they give insight into how other courts might rule in the future; they are part of the constellation of court rulings that all have come to the same conclusion: those born in the United States are natural-born citizens.

    And, under some circumstances, these federal cases may be cited in other courts as persuasive authority. The Tisdale rulings, along with Ankeny, were cited in Neal v. Harris (S.D. Ohio No. 20-840), which challenged Harris’ eligibility. Neal is not a published decision (in case DeMaio may have any further confusion), but it grants even further insight into how the federal bench views these issues.

    The citations in Neal were in dicta, of course, because Neal’s case was dismissed due to lack of standing. The Ohio federal court merely was saying, even if Neal had standing, Neal would still lose because Harris is a natural-born citizen.

    But this is all a distraction. There are few federal rulings on the meaning of natural-born citizen, not because the federal courts are evading the issue, but rather the federal courts have limited jurisdiction. Which is why cases such as Laity’s federal proceedings have been dismissed for lack of standing.