Nationality Act of 1940: Nipping wingnut memes in the bud

by Bruce Webb

Right Wingnuttia is ablaze. Time for some cold water.

There are a couple of lawsuits floating around concerning Obama’s alleged non-citizenship. One is Berg v. Obama which was dismissed due to lack of standing on October 24. Berg has appealed that to the Supreme Court which has not to my knowledge taken it up at all. The other case is Donofrio v. Wells which was thrown out at the NJ State Supreme Court. Donofrio applied for a stay to the US Supreme Court, which application was denied by Justice Souter and then for whatever reason referred to the full court by Justice Thomas. These two court cases seem to have been blended together in the fever swamps of the Right and it is time to sort them out a little.

Summary version: they got nothing. Nothing on the substance and nothing on the law. Those with a taste for bizaare conspiracy theories and debunking of same can follow me below the fold. Or you can do something more productive like grab a beer and watch football. Your choice.

Although Donofrio v. Wells is in some sense actually before the Supreme Court it almost certainly isn’t going anywhere. First there is no longer any serious question about where Obama was born, his office has a certified and sealed official copy of his birth certificate. has clear photos (~2 meg jpgs) showing this in much better detail than the scanned version normally circulating the web. Born in the USA. Second it would appear that even if Donofrio v. Wells was somehow upheld it would only apply to New Jersey. And third the NJ Attorney General seems to have throughly thrashed the legal reasoning. So much so that even the wingnuts have mostly moved on to Berg v. Obama.

Now while Berg v. Obama was dismissed in October due to lack of standing, the judge didn’t rule on the substance. Berg v. Obama asserts that Obama’s mother and hence Obama lost citizenship when she married Soetoro and moved to Indonesia. Now there is a lot more stuff revolving around this, claims of adoption, that Obama went by the name Barack Soetoro while in Indonesia, talk about Obama travelling to Pakistan on an Indonesian passport at age 20. But due to a lot of hard work by an Obama supporter running a reality constrained website called What’s your evidence we can see that the whole case falls apart both on substance and by mis-citing the statutes. Berg cited the 1940 Act, but it simply doesn’t support his claim to start with.

From and after the effective date of this Act, a woman, who was a citizen of the United States at birth, and who has or is believed to have lost her United States citizenship solely by reason of her marriage prior to September 22, 1922, to an alien, and whose marital status with such alien has or shall have terminated, if no other nationality was acquired by affirmative act other than such marriage,shall, from and after the taking of the oath of allegiance prescribed by subsection (b) of section 335 of this Act, be deemed to be a citizen of the United States to the same extent as though her marriage to said alien had taken place on or after September 22, 1922.

Sec 317(b) Nationality Act of 1940 (pdf)
Okay it would appear from this that women who married a foreign citizen before Sept 1922 by that act lost citizenship. This act provides an easy way to regain it. But Obama’s mother didn’t marry anyone prior to that date, she was not even born, meaning this part of the act doesn’t even pertain. Not that it would matter.

Sec 401: A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: (a) Obtaining naturalization in a foreign state, either upon his own application or through the naturalization of a parent having legal custody of such person: Provided, however, That nationality not be lost as the result of the naturalization of a parent unless and until the child shall have attained the age of twenty-three years without acquiring permanent residence in the United States:

Even if Obama’s mother had somehow naturalized as an Indonesian (by effect of law or application) and so equally naturalized her minor son, that son could still regain U.S. citizenship by acquiring permanent residence by the age of 23. Which Obama of course did. But even that only matters a little. Because the Nationality Act of 1940 cited by Berg is not even the right one to apply in this case. Instead you would want to look at the Immigration and Nationality Act of 1952

From and after the effective date of this Act a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by — (1) obtaining naturalization in a foreign state upon his own application, upon an application filed in his behalf by a parent, or duly authorized agent, or through the naturalization of a parent having legal custody of such person: Provided, That nationality shall not be lost by any person under this section as the result of the naturalization of a parent or parents while such person is under the age of twenty-one years, or as the result of naturalization obtained on behalf of a person under twenty-one years of age by a parent, guardian, or duly authorized agent, unless such person shall fail to enter the United States to establish a permanent residence prior to his twenty-fifth birthday:

Which not only adds two years to the window shows that Mr. Berg isn’t even citing the right statute.

People who wish can explore the questions of whether Obama’s step-father adopted him, whether or not he attended school under the name Barack Soetoro, or whether his identification card described him as ‘Indonesian’. Or further you could examine the claims that he travelled to Pakistan at age 20 under an Indonesian passport. Some of the evidence of these matters is pretty sketchy and the rest apparently non-existent but none of that matters. As a minor under the age of 21 it doesn’t appear that any act by Obama’s parents could have caused him to permanently lose his citizenship as long as he relocated in the United States by age 25.

Meaning a whole bunch of frothing happening as we speak over on the other side of the blogosphere is kind of a waste. The Acts of 1940 and 1952 effectively acted as reset buttons.