The Obama Administration Quietly Scrubbed The Foreign Affairs Manual in August 2009 To Expand The Holding of Wong Kim Ark.
By now, readers of this blog should be more than familiar with the tainted holding of the US Supreme Court in Wong Kim Ark. In that case, the Supreme Court held:
“The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.”
This holding has been the subject of enormous dispute in the United States. The “holding”, which is controlling US law, contradicts much of the “dicta“, which is not considered legal precedent. While the dicta makes it appear as if Justice Gray believed all persons born on US soil (except children of foreign dignitaries or enemies of the US) were US citizens under the 14th Amendment, the actual holding of the court is limited to “the single question” of whether the children of aliens who have a “permanent domicil and residence in the United States” are 14th Amendment citizens.
The holding does not specifically grant 14th Amendment citizenship to persons born in the US of illegal aliens, or even of those here temporarily (tourists and students). Numerous legislative attempts have been made on both sides of the Congressional aisle – as well as in a multitude of States – to clarify this holding by statute as to the children of illegal immigrants (aka “anchor babies”).
Up until August 20, 2009, the US State Department’s Foreign Affairs Manual stated – with regard to the holding in Wong Kim Ark – in 7 FAM 1116.2-1(c):
c. Pursuant to this ruling, it has been considered that:
(1) Acquisition of U.S. citizenship generally is not affected by the fact that the parents may be in the United States temporarily or illegally;
This was the language used by both the Clinton and Bush administrations from 1995 through August 20, 2009 in the Foreign Affairs Manual. Please note that the words “considered” and “generally” are in italics placed by the State Department. Such italics emphasize that the practice stated above has never been clarified as law, so it is simply “considered” to be the law.
On this point, the Foreign Affairs Manual had been a rational document in that it reflected the true state of affairs. It stated the common “interpretation”, but it refrained from listing what was “considered” as if it was actually “the law”. Such rationality was good enough for both the Clinton and Bush administrations… but not for the Obama administration. This disrespect for prior administrations and law must be part of the CHANGE promised in his campaign.
The link provided above (attached to the Date of August 17, 2009), refers to a snapshot taken of this section of the manual by the Way Back Machine for 2009 (at the wonderful Internet Archive) on August 17, 2009. If you look into the actual URL link, it shows the date it was taken which corresponds with the calendar of snapshots. At the top of that page, you will see – “(TL:CON-64; 11-30-95)” – which informs you that the page had read this way since 1995.
The next date listing a snapshot on the calendar of snapshots is August 30, 2009 . And this is the first snapshot which contains the current – scrubbed – edition of the Foreign Affairs Manual, which – with regard to the holding in Wong Kim Ark – states:
d. “Subject to the Jurisdiction of the United States”: All children born in and subject, at the time of birth, to the jurisdiction of the United States acquire U.S. citizenship at birth even if their parents were in the United States illegally at the time of birth.
That is a vastly different statement. The rational discussion of the two prior administrations was replaced by the desperate (to protect) Obama administration on August 21, 2009. While the prior edition of the manual went only so far as to state that persons born to illegal immigrant parents on US soil were “considered” to be US citizens, Obama’s scrubbed edition has struck the limited holding of Wong Kim Ark and replaced it with his own opinion which unequivocally declares the children of illegal immigrants (as well as tourists and students) to be 14th Amendment citizens.
This scrubbing took place shortly after we discovered Justice Gray had been appointed to the Supreme Court by a British subject usurper named Chester Arthur.
This reeks of self-serving propaganda since Gray’s limited “holding” only applied to those “permanently domiciled” here (like President Arthur’s father, a British subject alien at the time of Arthur’s birth). The holding in Wong Kim Ark did not cover children born in the US of persons who were only here temporarily such as Obama’s father. Hence, the need for scrub a dub dub dub.
Usually, an alteration of the Foreign Affairs Manual would only be warranted if the law had been changed or clarified by the Supreme Court or by a statute. But there was no official change in the law. The manual was simply scrubbed… along with the Constitution.
by Leo Donofrio