John Vlahoplus (Independent) has posted Foreign-Born Children of Disloyal Parents: Adam Muthana, Mary Arcedeckne and the Natural Born (St. John's Law Review, forthcoming) (106 pages) on SSRN. Here is the abstract:
The collapse of the Islamic State of Iraq and Syria has left thousands of foreign ISIS adherents and their children in refugee camps controlled by irregular forces. The United States faces the question whether its emigrants' disloyalty affected their citizenship and that of their children born in the self-proclaimed caliphate. This article frames the American citizenship issues in light of common and statutory law from which American law developed, with particular regard to the 1730 House of Lords decision in Arcedeckne v. Horan. That case determined whether a British derivative nationality statute deemed the foreign-born child of disloyal subjects to be natural born and therefore capable of inheriting real property in Ireland. This article is the first extended analysis of Arcedeckne and appends transcriptions of previously unpublished primary source materials from the case.
The article applies the principles of Arcedeckne, the common law, and American constitutional and statutory law to the case of Hoda Muthana, a New Jersey-born ISIS adherent, and her foreign-born son Adam. It identifies potential challenges to the federal government's argument that neither is a citizen as well as to Adam Muthana's claim to derivative citizenship. In particular it identifies textual and historical challenges to the federal government's argument, including inconsistencies between it and natural allegiance at common law. The article suggests that the federal government relies on a consequentialist argument in the case based on the evolving threat of global terrorism rather than on textual or historical methods of legal interpretation that many in the executive branch espouse.
Posted at 6:08 AM