Posted on 10/23/2008 10:32:41 AM PDT by David
The legal issues regarding how ineligibility to act as President under Article II, Sec. 1 of the Constitution might be challenged are the subject of a number of posts. There is, I think, broad misunderstanding of some elements of the Berg proceeding as well as some of the other actions.
Two articles in the on line version of the Michigan Law Review summarize, the fundamental legal issue (Lawrence B. Solum, Commentary, Originalism and the Natural Born Citizen Clause, 107 Mich. L. Rev. First Impressions 22 (2008)), www.michiganlawreview.org/firstimpressions/vol107/solum.pdf, and procedural issues regarding possible challenge of ineligible candidates (Daniel P. Tokaji, Commentary, The Justiciability of Eligibility: May Courts Decide Who Can Be President?, 107 Mich. L. Rev. First Impressions 31 (2008)), www.michiganlawreview.org/firstimpressions/vol107/tokaji.pdf .
A third article in the same publication addresses unusual considerations in connection with the candidacy of Senator John McCain (Gabriel J. Chin, Commentary, Why Senator John McCain Cannot be President: Eleven Months and a Hundred Yards Short of Citizenship, 107 Mich. L. Rev. First Impressions 1 (2008). www.michiganlawreview.org/firstimpressions/vol106/chin.pdf
As we all, by now understand, Article II, Sec. 1 of the United States Constitution requires that to be eligible to hold the office of President of the United States, a person must be a "natural born" citizen.
Although the Constitution does not define the term "natural born", as Professor Solum points out, it appears to have been derived from the English Common law term "natural born subject". Since the US has citizens, not subjects, the word was changed.
However there is little room for doubt that incorporation of the concept in Article II, Sec. 1 was designed to address the proposition that a person is subject to the legal sovereignty of the head of state in the physical location where the person is born. The founders rejected the idea of a head of the US Government who was subject to another sovereign.
And achievement of that objective requires that persons not born in the geographical limits of the 50 states be ineligible to serve as President.
Goldwater was viewed as eligible because the territory of Arizona where he was born was not subject to any other sovereign in the period between his birth there and its incorporation in the state of Arizona.
Senator McCain is an honorable man. His original birth records are posted on line for everyone to see. He was born in a Private Hospital in a foreign country. He isn't eligible under the test.
It is routinely suggested that the term "natural born" should include persons who become citizens as a result of their birth under applicable citizenship law. That suggestion does not address the problem presented by the fact that such a person who is born in the territory of another sovereign is a subject of a foreign head of state.
However McCain has an additional problem. On its face, modifications to citizenship statutes which would have made him a citizen at birth (because both his parents were US Citizens) were adopted after he was born and do not appear to have retroactive application (although that issue is subject to argument).
Professor Chin's article, on its face, is responsive to an opinion by Professor Tribe and Ted Olson, addressed to the Senate, arguing that McCain should be viewed as eligible. It would appear that given the political motivation of the Tribe and Olson opinion, and the obvious legal merit of Chin's article, there isn't much room for doubt that McCain is not eligible. Not only does he not meet the Constitutional test of freedom from sovereignty of a foreign government, he did not receive citizenship as a result of his birth.
Obama is in much the same legal position as McCain. Although he has effectively concealed purported original birth documents in Hawaii, and otherwise obstructed access to persons and records that would demonstrate his true place of birth, a fair reading of the record of his efforts at concealment and statements by parties with knowledge leaves little room for doubt that he was in fact born in the country of Kenya.
There are several "third-party" candidates for President however there is also little room for doubt that none of them are going to receive sufficient votes to be elected.
Thus the American electorate is faced with a situation in which the Presidential candidates of both of the major parties are ineligible to hold the office of President.
The consequence of installation of one of them as President will be legal challenge to the efficacy of every act they take as President. It is only a matter of time until District Court challenges to laws they sign or executive action they take from persons who have economically significant interests could involve the central government in well funded litigation resulting in a Constitutional Crisis.
At what point does the legal system address this issue?
The real fault lies with our quasi two party system and the nominating process. The parties should have recognized that failure to address this issue prior to nomination represents a threat to their franchise and the power they exercise over the political process.
Professor Tokaji's article addresses this issue.
We first considered this question in a number of posts in late June. At that time, we pointed out, as does Professor Tokaji, the apparent difficulties in a legal challenge prior to election.
It is difficult to find legal standing (a direct injury to a specific plaintiff) because it is always possible that the defendant, or responsive candidate's organization, would not prevail in the general election, thus mooting any complaint.
As a threshold proposition, it must be recognized that any legal challenge at any point, is likely to be very expensive. The lawyers for the moving party need to have significant support. Our experience in this kind of litigation is that it is seldom restricted to one lawsuit in one jurisdiction. Thus lead counsel needs to have access to several senior experienced lawyers who can travel to respond to collateral litigation that would affect the main case.
It would not have been surprising to find that a suit, initiated against appropriate parties during the summer might well have involved several million dollars of expense--and perhaps have been unsuccessful.
Several suits were initiated against McCain. I have speculated those actions were part of an effort on behalf of another Republican candidate to affect a credentials challenge on the floor of the convention. The cases were not well funded and were not pursued.
At present, Philip Berg, a Clinton supporter in Pennsylvania, has initiated a suit against the Obama campaign in federal district court. The initial defendants were not parties against whom the plaintiff had standing to assert present claims; the suit does not appear to present a justiciable controversy; and the consensus view is that the case will probably be dismissed without reaching any effective remedy.
The judge might, in the interest of addressing the substantive issue of the place of Obama's birth, permit some discovery before deciding that the case is without merit. But he is under no obligation to do so.
There are several other cases pending which seek comparable remedies. Those cases are not as far along as the Berg case.
Although Tokaji's article concludes that an action prior to the election is not likely to meet with success we believe that creative counsel might have been able to craft a complaint that would have survived challenge given that both candidates are ineligible for the same reason. That did not happen.
Tokaji's article continues to describe the possible basis on which challenge might occur after the election and anyone who is interested in this topic should read the entire article.
Although there is no obvious immediate direct recourse to legal process, it seems probable that given the significant change in the course of Constitutional government likely to result from an Obama election, sufficient funds will be obtained to pursue several of the various remedies.
It should be noted that there is another suit pending which is not subject to the considerations addressed here.
Andy Martin, an author, has initiated an action in Hawaii seeking access to the vault birth records of Obama. Although that suit does not seek an ultimate remedy determining Obama's eligibility to hold office, proof from Hawaii records that he was not born in Hawaii or that he was born in Kenya might well resolve the election issue as to Obama.
There is room for doubt as to the quality and probability of success of Martin's legal effort.
Thank you David.
So you are saying there is really no such thing as Natural Born Citizen?
Or that is what this article is saying it seems. No point in distinguishing Naturalized anymore fellas, seems if you are a US Citizen, you are IN.
Arnold, ready for a run for Prezeedentah?
McCain’s case was brought up by the Obama group along with Bill Richardson early in the campaign.
McCain was ruled eligible! His parents were on foreign soil yes within an American territory of defense.
Obama was probably born in Indonesia or Kenya - not Hawaii - therefore the natural born citizen cannot apply. I think they are trying to make it seem he was born in Hawaii and he is having difficulty trying to provide yet “another” Hawaiian Birth Recognition or Certificate or whatever they call it, when in fact he was born elsewhere.
The first submission of an Hawaiian document (however poorly photoshopped) was not enough, an insult to the American people and amounts to the fact he shows little regard for the rules of the Constitution.
The discussion on McCain not being eligible is idiotic, stupid and otherwise vapid.
McCain was born of 2 American citizens, while his father was stationed in the Panama Canal Zone (which happened to be under US jurisdiction.)
Any efforts to “exclude” McCain as a legitimate candidate for President is “noise” designed to obfuscate the real issues about whether or not Obama might have been born overseas, might have had a foreign passport, might have traveled to Pakistan under a foreign passport, might not have done the correct things to reclaim his American citizenship, etc.
If I was to bet on the issue, I would be willing to bet that Obama is only hiding his birth certificate and other requested documents because it would show that his own claims of his past are contrived and not in accordance with the facts. While he is likely to be ruled eligible to run for President, the evidence would likely show that he is a liar, and it would hurt him at the polls.
Everyone should read this:
http://colony14.net/id41.html
The Obama Timeline
Then, consider the junk written by David.
How dare he compare McCain’s timeline (birth, militaray service, experience) with this communist Obama.
“Although he has effectively concealed purported original birth documents in Hawaii, and otherwise obstructed access to persons and records that would demonstrate his true place of birth, a fair reading of the record of his efforts at concealment and statements by parties with knowledge leaves little room for doubt that he was in fact born in the country of Kenya.”
Wonderful analysis David, that’s what we’ve been missing from the mainstream media.
Can you also shed some light on the current process by which candidates are “vetted” when they apply? Is it as simple as each state validates their own candidates? In that case is it as simple as Obama checking a box on his application certifying that he is a NBC and signing?
Ping.
Incorrect.
McCain was born at Coco Solo Naval Air Station in the Panama Canal Zone. That was American territory.
ping for later reading
Incorrect. He was born in Colon, Panama.
The link to the Chin article does not work...
This is all going nowhere. Even IF it were somehow proven that Obama was not a natural born citizen, the courts would hold that it is up to Congress to decide that issue.
Remember in 2000 when some moonbats challenged Bush’s Florida electoral votes? These challenges were overruled by the House and Senate, the votes were counted and the rest is history.
www.freerepublic.com/focus/f-news/2112829/posts
but was killed by FR moderator.
I was just following the chatters, so I Google search "barack obama son of frank marshall davis" and got this
http://astuteblogger.blogspot.com/2008/09/obamas-real-father-connecting-dots.html
I didn’t see anything compared to Obama other than the birth location circumstances. What else did David compare?
A federal judge has thrown out a lawsuit seeking to remove John McCain from the California ballot because he was born in the Panama Canal Zone.
U.S. District Judge William Alsup ruled late Tuesday that the law at the time of McCain's birth automatically granted citizenship to offspring of U.S. citizens.
McCain's parents were both citizens when McCain was born Aug. 29, 1936, in the Panama Canal Zone, a U.S. territory where his father was stationed with the U.S. Navy.
Alsup said Congress passed a law the following year specifically to "remove any doubt as to persons in Sen. McCain's circumstances in the Canal Zone," thus "retroactively rendering Sen. McCain a natural born citizen, if he was not one already."
He was born in Colon.
Enough
This guy (whatever his name is this week) has stomped all over our requests for legitimate proof that he is eligible to run for the highest office in the land. An exercise we are often asked to go through in our adult lives as proof of our existence to be in the USA.
His early adult years in the mainland of the USA studying and submitting published papers have disappeared.
His heritage is questionable.
He cannot provide a simple birth certificate - how did he become a State and then Federal Senator withut proper identification?
His ridiculous money fund makes me believe there is more at stake here than the presidency of this nation.
I see there are many others around the world who have purchased Obama for their deeds and he - being the psychopath he is - has joined in for the glory of the deed.
The Dark Messiah - who cares nothing for the United States of America.
He is nothing more than a street thug and we treat him with reverence.
Wanting to believe the lies - wanting to hope the promises will be kept -
We can make all these happen for ourselves, we should not have to rely on one character who has appeared as a cypher
in our midst buttering up everything we dream of and hope for - we can make these things happen for ourselves if we buckle down... but....
Not with this joyless liar at the helm.
8 U.S.C. § 1403. Persons born in the Canal Zone or Republic of Panama on or after February 26, 1904
(a) Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.
(b) Any person born in the Republic of Panama on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States employed by the Government of the United States or by the Panama Railroad Company, or its successor in title, is declared to be a citizen of the United States.
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