On the contrary, the Supreme Court directly overruled the House of Representatives in Powell v. McCormack, and found the House had acted improperly in refusing to seat (not impeach) a duly elected and qualified member. It was one of the most politically assertive rulings the Court has ever issued.
Japan was never under American “jurisdiction” in the sense we’re talking about here, including during the American occupation.
That’s not quite right. Political question doctrine includes executive-legislative conflict cases, but also cases on which there are no legal norms to apply (indeed the paradigmatic case–cited in nearly every PQ decision–is Luther v. Borden, which was about justiciability of a question when there were no legal norms to apply).
Here’s my post from the other thread:
Oh dear, you are quite right. I must have been looking at the appeals court opinion which did, in fact, reject the case for lack of justiciability.
Looking over the supreme court case, however, they do dwell on the question of whether this is a political decision, and finally decide that it is not. They say that the issue in the case is actually one of constitutional interpretation. More evidence, anyway, of my assertion (way back in post #5) that the SCOTUS would probably hear the Schwarzenegger case if ever it came before them.
The trouble with citing Luther v. Borden, 48 U.S. 1 (1849) is that the Court has basically reversed itself on the result in subsequent cases, even if the basis for its decision in Luther hasn’t been overturned. That is, while the court in Luther asserted that the issues in contention (an attempt by the citizens of a state to have a determination on the validity of the form of government of their state under the U.S. Constitution) were non-justiciable, those precise issues have been made justiciable in numerous cases under the 14th Amendment. So while technically such cases are non-justiciable, practically speaking they are valid cases now.
Still, the case you cite has to do with disputes between citizens of a state and their government. We are talking disputes at the federal level, and at that level, the “political question” issue is primarily one that directs its attention to the squabbles of the other two branches of government.
PQ is about whether a particular textual provision or power is committed to another branch and whether there are sufficient legal norms to be applied to it. In Luther, the theory was based on the Guarantee Clause. The court held that the Guarantee Clause is the province of Congress and that there are no legally enforceble norms attached to it. The Equal Protection Clause, on the other hand, does have legal norms and is not the exclusive province of Congress. So the fact that 14th amendment cases have addressed some of the issues discussed in Luther neither undermines Luther nor suggests that Luther is wrong in its interpretation of PQ.
The origin of political question is the Marbury model of judicial review. In it, the judge is supposed to apply objective, external legal norms to settle a dispute. When those legal norms don’t exist, there is no Marbury review. Of course, since we’re talking about judicial review, we are necessarily talking about the review of some part of government. So, naturally, there is always some branch of government in question. Given our system of separation of powers, it is often the case that this arises in a context of conflict. But conflict is not in any way inherent to the concept.
As noted in my last post, most of the application of PQ is ad hoc. The only real guidance comes from Baker v. Carr. The classic statement of PQ is cited, along with Luther, by virtually every PQ case:
Baker v. Carr, 369 U.S. 186, 217 (1962). As you can see, it has nothing to do with inter-branch conflict—or no more than any other judicial review–and everything to do with the nature of the legal norms.
Do you mean in theory or in practice? I, John Q. voter, can’t recall ever being presented a ballot that had the names of presidential electors listed instead of the names of the party’s candidates. I have voted in presidential elections in two different states (at different times).
I think we’re in agreement but just arguing about the wording. I’m saying that the United States government controlled Japan and the Canal Zone, including their political and legal systems (which was what I meant by saying they were under American jurisdiction) but they were still a foreign country and never considered part of the United States.
I believe if you look carefully at your ballot this November, you will see that the choice you are offered is to vote for something along the lines of an unspecified slate of electors pledged to vote for John McCain, or one pledged to vote for Barack Obama ( 
), etc. So, while you never see the names, that’s what you are voting on.
No, I’m saying you are wrong in every sense. The legitimacy of American control over the Canal Zone was an issue ever since 1904, and Congress eventually clarified it with regards to birth and citizenship.
No equivalent was ever done for Japan, because nobody at any time ever considered Japan to be an issue. It was never under American jurisdiction, just American control. Not the same thing. Children born to American citizens who were there at the time are subject to the same laws as children born to any American citizens not living in the U.S., without any special status.
I’ll look carefully at my ballot next time, I believe you’re right, it does have the word Electors in there. But I used to live in a state where the electors were not required by state law to cast their vote for a specific candidate. I say that in a state where the electors are free to change their vote, it is misleading if not downright fraudulent to list the names of presidential candidates on the ballot, instead of the names of electors.
I’m growing confused. I keep saying I agree with everything you say and you keep saying that I’m wrong. I have to assume you’re somehow misunderstanding what I’m saying. So let me try again.
People physically born in the United States are natural-born citizens, regardless of their parents’ citizenship. Some places, like Japan and the Canal Zone, have been occupied by the United States. But they are not part of the United States. Therefore, people physically born in these areas are not natural-born citizens of the United States solely because of the location of their birth. If they are a natural-born citizen who was born in these areas, their natural-born citizenship is due to some other reason.
I’m confused too. One more stab, then I’ll drop it.
First, I think Colibri was wrong in post #19.
Since 1953, being born in the Canal Zone to American parents does specifically give American citizenship, and it’s retroactive to 1904. It is a different case than Costa Rica, by edict of Congress. The retroactivity makes it a unique case, I believe, although I may be wrong about that aspect.
Your reply in post #20.
First, you’re agreeing with Colibri’s incorrect statement. Second, you should not be bringing Japan into the conversation for any reason at all. It has no parallel to the Canal Zone. It is parallel to Costa Rica, say, but not the Canal Zone. Third, the Canal Zone was not under U.S. occupation; it had a different legal status. Fourth, the U.S. occupation of Japan did not put it under U.S. jurisdiction. The wording is important, and is in fact crucial.
So what you say in post #32 is still wrong and confusing. People physically born in the Canal Zone at any time after 1904 are U.S. citizens by virtue of their birth to American citizens, by statute.
I can’t see any way that mentioning Japan in any context has any bearing on the discussion. That was my original objection, and I haven’t seen any reason to correct it. It was more of a nitpick than a big deal, which is why I’ll drop it after this.
I think you are misunderstanding what I said. The circumstance that conferred American citizenship on a person born in the Canal Zone was the American citizenship of the parents, not the fact that they were born in the Canal Zone. Children of Panamanian, or Jamaican, or French parents who were born in the Canal Zone did not obtain American citizenship, unlike those of like parentage who are born within the territory of the US. This is what I meant when I said that “being born in the Canal Zone did not in and of itself confer US citizenship.”
There were a few small technicalities regarding citizenship associated with the Canal Zone, mainly that the Canal Zone-born child of a US citizen did not have the requirement of having to live in the US for some period in order to pass on US citizenship to his or her own children, which would otherwise apply. However, as far as conferring US citizenship, being born to US parents in the Canal Zone was pretty much the same as being born to US parents in Costa Rica.
The Hay-Bunau-Varilla Treaty of 1903, which created the Canal Zone, gave the US the right to act as if it were sovereign in the Zone. It did not, however, actually transfer the land to become a part of the US; the Zone remained, technically speaking, part of Panama. Incidentally, Panama regards anyone born in the Canal Zone as a Panamanian citizen. I am not sure if there was some time limit on filing, but I think that John McCain could probably qualify as a “natural born” citizen of Panama.
Well, let’s consider that Austria was an Allied/US occupied nation in 1947, when Arnie was born.
If Congress can make dudes in the Canal Zone “natural born” citizens, they can make those in other US occupied territories Citizens as well. Why not? 
:smack:
You seem to be having a really hard time with this concept. They were citizens because their parents were US citizens, NOT because they were born in the Canal Zone. Arnold’s parents were not US citizens. The circumstances are not comparable in the least.
I’m sensing that someone wants to see Arnie run for president.
Exapno, are you aware that a person born in the United States is an American citizen, regardless of the citizenship of his or her parents? For example, if two illegal immigrants from Mexico have a son in Los Angeles, then the child is an American citizen, even though his parents are Mexican citizens and not even legal residents in the United States. But this is only true in the actual United States, not in areas under the control of the United States. That’s the point Colibri and I were making; that a person born in the Canal Zone (or occupied Japan) is not automatically an American citizen just because they were born in an American-controlled area. This was in response to those posters who seemed to believe otherwise.
Yes, I see that now.
Whether the Panama Canal Zone was part of the United States was itself the issue that had long been in dispute. Citizenship was merely one aspect of the rights that were in dispute.
The question of whether those residing in U.S. territories, possessions, or other lands should have all the constitutional rights is examined in Andro Linklater’s The Fabric of America, which I fortuitously just finished reading. A Supreme Court decision essentially said that while they *should * have them, reality dictated that it was too difficult to do so, and tough luck. This was from a case in the Philippines from around that same 1903 time period.
I also took a closer look at section 1401, and realized that while I had thought that the only condition needed for citizen status of a foreign birth was the citizenship of one parent, there are in fact time limits involved for how long that parent had been out of the country, which explains why section 1403 is not merely redundant. 1401 and 1403 together would be high barriers for anyone saying that McCain was not a citizen to get around, although I recognize the lack of case law on the issue.
ETA: Took a while to poke around the internet so just noticed Little Nemo’s post. My objection was to Colibri’s wording, which he’s clarified, and we both agree about its correctness. Your bringing in Japan remains a mistake.
No one is saying he isn’t a citizen, or even a natural-born citizen under statute. They are saying that he may not be an Article II natural-born citizen, a subject to which Congressional statutes do not (and really cannot) speak–McCaskill’s bill notwithstanding.