This is the page that Josh Marshall quotes at TPM:
A layman's description of the regulations
So, I googled up this one:
eCFR, an updated electronic, searchable copy of the Code of Federal Regulations, which the above link interprets in layman's language
More after the fold
If you read the CFR, you will swiftly notice that this does not include the older regulation which supposedly applies to Obama's DOB. The layman's guide says it does, but the CFR does not mention it. Why?
So, we find the enabling legislation:
The current law
Quoting freely, since the actual, written laws of the United States are the ultimate in public domain:
SEC. 301. [8 U.S.C. 1401] The following shall be nationals and citizens of the United States at birth:
This is the actual controlling paragraph, since all the evidence says he was born in Hawaii, which was, even at the time of his birth, a state of the union:
(a) a person born in the United States, and subject to the jurisdiction thereof;
But if you could actually prove that he was born in, say, Kenya, this would apply:
(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 1 of the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288) 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 1 of the International Organizations Immunities Act, 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;
No five years after fourteen residence requirement, AND the specific statement that this proviso shall be applicable to persons born on or after December 24, 1952 as if it had become effective in its present form on that date The State Department's layman's guide says that the five year requirement applies from Dec. 24, 1952 to November 13, 1986 and says that it is the time period required by the law applicable at the time of the child's birth. I presume that Title 8 was amended effective on November 13, 1986 to the above language and there may be language somewhere that says that it does not mean what it says it means.
The State Department's lay interpretation also includes this language:
Birth Abroad Out-of-Wedlock to a U.S. Citizen Mother: A child born abroad out-of-wedlock to a U.S. citizen mother may acquire U.S. citizenship under Section 301(g) INA, as made applicable by Section 309(c) INA if the mother was a U.S. citizen at the time of the child's birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.
So, 309(c) (the law) says:
(c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person's birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.
309(a) says 301(g) also applies. I still don't see where the State Department finds authority for five years residence after age fourteen between Dec. 24, 1952 to November 13, 1986. But, meh. We continue as if it were true....
The State Department says "a period of ten years, five after the age of fourteen" which the grammar nazi says means you would have to be twenty to confer citizenship on your child. It says "AFTER". so you don't start fulfilling the requirement until after you are fourteen, that is to say, fifteen, when you are sixteen you've just got one year in (hence, I suspect, the one-year residency requirement for unwed mothers), two when you are seventeen, three at eighteen, still only four when you are Ann Dunham at nineteen, you aren't eligible until you turn twenty. This means that it is two years after the legal age of majority before a parent can confer citizenship. Just think about that for a moment. If questioned, this regulation will not stand against even cursory "equal protection" review. If this is just an interpretation by Immigration Judges that applies the old law during the time frame that it was the law, I very much doubt that interpretation would stand against a review of the plain language of the new (23 year old) statute.
However, given the general attitude of CIS/ICE, some Good Samaritan should find a 24 or 25 year old born in Toronto, say, with one US Citizen parent who was between 18 and 20 at the time of birth and go demand a certificate of citizenship on the grounds that s/he might want to run for POTUS someday. They aren't going to say no. If they do, it would be one of those headline cases where the defendant can only dig a deeper hole.