Nikki Haley, the daughter of two non-citizens, is patently ineligible to serve as President or Vice President under Article II, Section 1 of the Constitution
The following analysis is a detailed response to critiques of an article I wrote earlier this month that garnered national attention, and was even Truthed by President Trump, shedding light on Nikki Haley’s ineligibility to serve as President or Vice President under the Constitution. My article was published originally on my Substack and American Greatness, and was titled “The Constitution Absolutely Prohibits Nikki Haley From Being President Or Vice President.” As A Threshold Matter, Nikki Haley, The Daughter Of Two Non-Citizens, Must Provide Proof That Her Parents Were Lawful Residents When She Was Born
As we head into the New Hampshire Republican primary, the presidential field has consolidated around three major candidates: Donald Trump, the frontrunner by wide margins, Nikki Haley, and Ron DeSantis. With Vivek Ramaswamy’s distant fourth place finish in Iowa and subsequent endorsement of the 45th President, Trump’s edge in New Hampshire looks insurmountable.
Recent polling suggests that he commands an outright majority of all New Hampshire GOP voters, meaning that even if all the remaining candidates dropped out and rallied around a single challenger to Trump, their collective effort would still fail – without, perhaps, outside help from Democrats and Independents. With recent reports that Ron DeSantis’ War Room has been dissolved, and all the staff being laid off in the aftermath of Iowa’s disaster, it seems to have proven true Nikki Haley’s post-Iowa declaration that the Republican Primary has now become “a two person race.”
At no time have two citizen parents been required. The words speak only of the status of the candidate, not his or her parents.
George Washington
Thomas Jefferson
James Madison
James Monroe
Andrew Jackson
Chester Alan Arthur
Barack Hussein Obama II
Kamala Harris
There are fifteen terms as President or Vice President without two citizen parents. The grandfather clause did not mention parents. The qualifications clause did not mention parents. Such requirement is not in any of the statements or writings of the framers of the Constitution, or in the entire record of the ratification debates of the United States Constitution.
https://www.everycrsreport.com/reports/R42097.html
Congressional Research Service
Informing the legislative debate since 1914
Qualifications for President and the "Natural Born" citizenship Eligibility Requirement
Jack Maskell
Legislative Attorney
January 11, 2016
CRS Report
Prepared for Members annd Committees of Congress
Congressional Research Service
7-5700
www.crs.gov
R42097
[excerpt - footnotes coverted to endnotes]
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Citizenship of Parents Concerning specifically the reading into the Constitution of a two-citizen-parent requirement for “natural born” citizenship status, it should be noted that there is, significantly, no historical nor controlling legal holding in American jurisprudence to support the argument that parental citizenship governs and controls the eligibility of a native born United States citizen to be President. As indicated in the discussion of the history of the constitutional provision, there is also no justification for this unique theory, which would exclude an entire class of native born U.S. citizens from eligibility for the Presidency, in any of the statements or writings of the framers of the Constitution, or in the entire record of the ratification debates of the United States Constitution.200
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In 1825, in a significant and widely recognized work on the Constitution, William Rawle specifically noted that the term “natural born citizen” as used in the Constitution would include “every person born within the United States ... whether the parents are citizens or aliens....”201 Similarly, in his treatise on Citizenship of the United States, Frederick Van Dyne, Assistant Solicitor of the Department of State, explained in 1904 that the rule governing citizenship is not one derived from “international law” or the so-called “law of nations,” but is rather municipal law which “[e]very nation determines for itself’ and, in the United States, derives from the common law principle of jus soli, dependent “on the place of birth,” as modified by statute incorporating the principles of jus sanguinis to include the children of citizens “born out of the jurisdiction of the United States.”202 In reviewing Supreme Court decisional material, the author in this treatise noted that the Fourteenth Amendment and the 1866 civil rights act “reaffirm the fundamental principle of citizenship by birth” which “was generally held to be regulated by the common law, by which all persons born within the limits and allegiance of the United States were deemed to be natural born citizens thereof.”203
Although the Supreme Court has never had to address the issue of “natural born” citizenship directly in the context of a challenge to the eligibility of one to be President, the federal courts have discussed the concept on numerous occasions for more than 200 years and have, other than in the Dred Scott decision, consistently relied upon the place of birth, without regard or reference to the status of one’s parents, as the determining factor of natural born citizenship. A celebrated and frequently relied-upon state court ruling in 1844 provided a detailed explanation of the legal history of the citizenship laws and statutes in the United States, and provided the following conclusion with respect to natural born citizenship:
Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.204
That the place of birth was principally the rule governing “natural born” citizenship under American jurisprudence, regardless of the status of one’s parents (except for children of official diplomats or hostile armies), even before the adoption of the Fourteenth Amendment, was explained by the Supreme Court in United States v. Wong Kim Ark, in 1898, which noted that the Fourteenth Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children born here of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory ....”205 The Supreme Court in Wong Kim Ark
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cited with approval those previous judicial rulings which held that every child born on the soil of the United States, and subject to its jurisdiction, are “natural born” citizens of this country, without regard to the nationality or citizenship status of their parents.206 The Supreme Court, this time using the term “native born citizen” again explained in that case:
Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.207
As discussed previously, the Supreme Court has used the term “native born” citizens (as expressly used in Wong Kim Ark to mean those born in the United States “whether children of citizens or foreigners”) as synonymous with, or at least included within the term “natural born,” in subsequent references to eligibility to the Presidency. In United States v. Schwimmer, for example, the Court stated: “Except for eligibility to the Presidency, naturalized citizens stand on the same footing as do native born citizens”208 Similarly, in Luria v. United States the Supreme Court stated: “Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency,”209 and noted in 1931 that other than the one instance in the Constitution which provides a difference, that is, the eligibility to the Presidency, “[t]he alien, when he becomes a naturalized citizen, acquires, with one exception, every right possessed under the Constitution by those citizens who are native born.”210
With regard to the citizenship of children born in the United States to recent immigrants, it is significant to note that in this country in the late 1800’s, the public’s economic fears and hostility to foreigners led Congress to—in the words of one historian—“legitimize[ ] racism as national policy”211 by adopting legislation to prevent immigration of Chinese laborers to the United States, and to prohibit anyone of Chinese nationality to obtain U.S. citizenship through naturalization.212 Despite this law and its extensions, commonly known as the Chinese Exclusion Act, the federal courts consistently held that children born “in” the United States of Chinese parents were “natural
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born” citizens of the United States, even if the parents may not have been United States citizens themselves and could not have “naturalized” under the Chinese Exclusion Act. In 1919, for example, the United States Court of Appeals for the 5th Circuit ruled that the appellee, Low Hong, based solely on the fact that he was born in San Francisco, without any reference to the nationality of his parents, “is a natural-born citizen of the United States.”213
Similarly, in a case in 1920 concerning the identity of a petitioner, the Supreme Court of the United States explained that “[i]t is not disputed that if petitioner [Kwock Jan Fat] is the son” of two Chinese persons who were physically in the United States when petitioner was born, then the Court would accept the characterization of him as “a natural born American citizen ....”214 The Supreme Court recognized that it had been alleged in earlier immigration proceedings that the father of Kwock Jan Fat had been born in the United States and, as averred by one witness, had voted in some election. The Supreme Court, however, made no finding, did not rely upon, nor did the Court even make a passing reference to the citizenship of the father of Kwock Jan Fat.215 Furthermore, it is significant that there was no evidence, no argument, nor even any discussion in the decision of the Supreme Court, or in the reported lower court decision,216 concerning the citizenship of the mother of Kwock Jan Fat. Neither the briefs for the petitioner, nor the brief for the respondent made any assertions or allegations concerning the citizenship of, or provided any argument or evidence concerning any naturalization of the mother of Kwock Jan Fat, but rather merely noted that she had been born in China and came to the United States as a child.217 It is, of course, well known to those familiar with U.S. immigration laws that during the time of the Chinese Exclusion Act a woman who was a Chinese national, and not a citizen of the United States at birth, could not have been naturalized as a United States citizen even if she married someone who was a United States citizen.218 However, the Supreme Court never discussed, referenced, or made any finding or conclusion concerning the citizenship of either the father, or the citizenship or naturalization of the mother of Kwock Jan Fat because the citizenship of one’s parents is not and was not relevant to the determination of “natural born” citizenship of one born in the United States. The relevant factor cited and determined by the Supreme Court of the United States was not the citizenship of both the father and mother, but rather—citing to the Wong Kim
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Ark precedent—was the physical presence of the parents in the United States (that is, that the parents were “domiciled” here) at the time of Kwock’s birth in this country. Concerning the issue of balancing the considerations of fairness and justice in such identity cases of one born to Chinese parents in the United States, the Supreme Court, in an oft-quoted statement, expressly said:
It is better that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country.219
In a case that preceded the Supreme Court’s Wong Kim Ark decision, the United States Court of Appeals agreed with the petitioner’s claim to be “a natural-born citizen of the United States” because of his place of birth, that is, within the United States, even though his parents were both “aliens” of Chinese nationality who were in the United States privately and “not here in any diplomatic or other official capacity under the emperor of China.”220 That federal court in 1884, relying on precedents including Assistant Vice-Chancellor Lewis Sandford’s opinion in Lynch v. Clarke, explained the concept in American jurisprudence that one is a “natural born” citizen when born in the United States, and subject to the jurisdiction of the United States,221 and that such was the state of American law even before the adoption of the Fourteenth Amendment (for other than those brought into the United States under slavery):
Independently of the constitutional provision, it has always been the doctrine of this country, except as applied to Africans brought here and sold as slaves, and their descendants, that birth within the dominions and jurisdiction of the United States of itself creates citizenship. This subject was elaborately considered by Assistant Vice-chancellor SANDFORD in Lynch v. Clarke, found in the first volume of his reports. [1 Sandf. 583.] In that case one Julia Lynch, born in New York in 1819, of alien parents, during their temporary sojourn in that city, returned with them the same year to their native country and always resided their afterwards. It was held that she was a citizen of the United States. After an exhaustive examination of the law the vice-chancellor said that he entertained no doubt that every person born within the dominions and allegiance of the United States, whatever the situation of his parents, was a natural-born citizen, and added that this was the general understanding of the legal profession, and the universal impression of the public mind.222
More recent federal cases expressly recognize the principle explained in the nineteenth century and early twentieth century cases that one born in the United States and under its jurisdiction, even when one or both parents were “aliens,” is considered a citizen of the United States by birth, and thus a “natural born” citizen of the United States. The court in Dos Reis ex rel. Camara v. Nicolls, for example, accepted the findings of fact that “The relator was born in the City of Fall River, Massachusetts, on December 31, 1921. His father was a native and citizen of Portugal, and his mother was a native of Brazil,” and that, as found by the Commissioner of Immigration and Naturalization, affirming the decision of the Board of Special Inquiry, “that the relator was a natural-born citizen....”223 In Loo Goon Hop v. Dulles, the court found that a person “having been
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born in this country,” without any reference to, finding, or identification of the citizenship of that person’s parents, is a “natural born citizen of the United States.”224 In Yamauchi v. Rogers, the federal court in reciting “findings of fact and conclusions of law,” found that the plaintiff, born in California of a “Japanese national” who had married another “Japanese national,” “is a natural born citizen of the United States....”225 A federal court in 1974 similarly explained and held: “The plaintiff was a native of Biafra, now a part of the Republic of Nigeria. His wife and two older children are also natives of that country, but his third child, a daughter, is a natural-born citizen of the United States.”226 In Diaz-Salazar v. INS, the court there noted that children born in the United States, even to an “illegal” (or undocumented) alien father, “are natural-born citizens of the United States.”227 Similarly, in Mustata v. U.S. Department of Justice, the United States Court of Appeals, in reciting the facts of the case, noted: “Petitioners Marian and Lenuta Mustata are citizens of Romania. At the time of their petition, they resided in Michigan with their two minor children, who are natural born citizens of the United States.”228
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198 Perkins v. Elg, 307 U.S. at 329.
199 Perkins v. Elg, 307 U.S. at 330.
200 As an historical matter it may be noted that Chester A. Arthur, 21st President of the United States, was apparently born in the United States (despite rumors being spread by opponents that he was born in Canada) in 1829 to a U.S. citizen-mother and a father who was not a U.S. citizen, but rather a citizen of Ireland and a British subject, although there have been assertions by some that this fact was not widely known at the time. See Thomas Reeves, GENTLEMAN BOSS: THE LIFE OF CHESTER ALAN ARTHUR, 202-203 (1975)). There was also a question raised concerning Charles Evans Hughes, Republican candidate for President who narrowly lost to Woodrow Wilson in 1916, and who was born in the United States to parents who were British subjects. Note Medina, The Presidential Qualifications Clause, supra at 267, n. 72, citing to Long, Is Mr. Charles Evans Hughes a “Natural Born Citizen” Within the Meaning of the Constitution? 49 CHIC. LEGAL NEWS 146 (1916). Although a question was raised by this individual at the time of Hughes’ candidacy, it did not appear to be an issue of any significance for Hughes or other presidential or vice-presidential candidates who were born in the U.S. of recent immigrants, as the “two-citizen-parent” argument with respect to native born U.S. citizens has not garnered serious legal consideration after Wong Kim Ark in 1898. The question did not appear to merit even a mention in the definitive, two-volume biography of Hughes. Merlo J. Pusey, CHARLES EVANS HUGHES, 316-366 (New York 1963).
201 William Rawle, A VIEW OF THE CONSTITUTION THE UNITED STATES OF AMERICA, at 80 (1825).
202 Frederick Van Dyne, CITIZENSHIP OF THE UNITED STATES, at 3-4 (New York 1904).
203 Id. at 4, 12. Emphasis added. Van Dyne explained in his treatise on citizenship that children born in the United States, even of alien parents (other than for the exceptions of diplomats and hostile troops) are natural born citizens of the United States, and distinguished as mere obiter dictum contrary comments on “jurisdiction” by the Court in The Slaughter House Cases, 16 Wall. (83 U.S.) 36, 73 (1872) which, even by 1904, had been shown to be no longer controlling as to those points. Id. at 12-23.
204 Lynch v. Clarke, 3 N.Y. Leg. Ob. 236, 250 (1844). Emphasis added.
205 169 U.S. at 693.
206 169 U.S. at 662-663, citing United States v. Rhodes, 27 Fed. Case 785 (No. 16151) (C.C. Ky. 1866), and Lynch v. Clark.
207 169 U.S. at 674-675. Emphasis added. Note that the dissent in Wong Kim Ark stated that under the majority’s controlling decision, a child born to alien parents in the United States “whether of the Mongolian, Malay or other race, were eligible to the Presidency ....” 169 U.S. at 715 (Fuller, C.J. and Harlan, J. dissenting).
208 279 U.S. 644, 649 (1929).
209 231 U.S. 9, 22 (1913).
210 United States v. MacIntosh, 283 U.S. at 623-624. See also Baumgardner v. United States, 322 U.S. 665, 673 (1944), and Schneider v. Rusk, 377 U.S. 163, 165 (1963). Furthermore, as discussed previously, noted constitutional scholars have also used the term “native born” citizen as a short-hand device to mean those born in the United States, without reference to lineage or ancestry, concerning those who are eligible to the presidency. Kent, COMMENTARIES ON AMERICAN LAW, supra at 273; Story, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES, at §271, p. 167; St. George Tucker, William Blackstone, BLACKSTONE’S COMMENTARIES: WITH NOTES AND REFERENCE TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND OF THE COMMONWEALTH OF VIRGINIA, Vol. I, App., at 323; 7 Gordon, Mailman, & Yale-Loehr, IMMIGRATION LAW AND PROCEDURE, at §§91.02[4][a] and §91.02[4][c].
211 Andrew Gyory, CLOSING THE GATE: RACE, POLITICS, AND THE CHINESE EXCLUSION ACT, at 1-2, 16 (UNC Press 1998).
212 22 Stat. 58, May 6, 1882. The original restrictions were to run for 10 years, but were extended another 10 years by the so-called Geary Act in 1892 (27 Stat. 25, May 5 1892), and then made permanent in 1902. The Chinese exclusion acts were repealed in 1943 (57 Stat. 600, December 13, 1943).
213 U.S. v. Low Hong, 261 F. 73, 74 (5th Cir. 1919).
214 Kwock Jan Fat v. White, 253 U.S. 454, 457 (1920): “It is not disputed that if petitioner is the son of Kwock Tuck Lee and his wife, Tom Ying Shee, he was born to them when they were permanently domiciled in the United States, is a citizen thereof, and is entitled to admission to the country. United States v. Wong Kim Ark, 169 U.S. 649. But while it is conceded that he is certainly the same person who, upon full investigation was found, in March 1915, by the then Commissioner of Immigration, to be a natural born American citizen, the claim is that the Commissioner was deceived and that petitioner is really Lew Suey Chong ....”
215 Even if Kwock Jan Fat’s father—Kwock Tuck Lee—was born in the United States, a determination for citizenship purposes would have needed to have been made as to whether the father of Kwock Tuck Lee was in the United States in the official service of the government or emperor of China. Furthermore, depending on the specific election and the particular laws of a local, state, county, or water district jurisdiction, for example, voting is not necessarily conclusive of citizenship. U.S. v. Esparza-Mendoza, 265 F.Supp.2d 1254, 1267-1268 (D.Utah 2003).
216 Kwock Jan Fat v. White, 255 F. 323 (9th Cir. 1919).
217 Kwock Jan Fat and Tom Ying Shee v. White, Appellants’ Opening Brief, at 2 (March 13, 1920): referring to Kwock Jan Fat’s mother “Tom Ying Shee, a native of China, who arrived in the United States when eight years old.” See also Brief for Respondent (April 12, 1920), and Petition for a Writ of Certiori and Brief in Support Thereof, March 5, 1919. Any assertion or argument that Kwock’s parents were both citizens would assume facts not in evidence.
218 Chang Chan v. Nagle, 268 U.S. 346, 351(1925): “The excluded wives are alien Chinese ineligible to citizenship here. Rev. Stat. 2169 (Comp. St. 4358); Act May 6, 1882, c. 126, 14, 22 Stat. 58, 61 (Comp. St. 4359)[the Chinese Exclusion Act of 1882]. Notwithstanding their marriage to citizens of the United States, they did not become citizens and remained incapable of naturalization.” This law would thus have prevented a Chinese native who married a United States citizen after May 6, 1882, from being naturalized as a U.S. citizen.
219 Kwock Jan Fat, 253 U.S. at 464.
220 In re Look Tin Sing, 21 F. 905, 906 (Cal. Cir. 1884).
221 That is, when the laws and jurisdiction of the United States are applicable to such person: “They alone are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, and with the consequent obligation to obey them when obedience can be rendered ….” 21 F. at 906.
222 21 F. at 909. Emphasis added.
223 68 F.Supp. 773, 774 (D.Mass. 1946). The court there found that even as a natural born citizen, an individual such as relator could expatriate himself under the operation of the existing federal law by performing acts indicating the “voluntary renunciation or abandonment of nationality and allegiance,” such as voluntarily serving in a foreign army.
224 119 F.Supp. 808 (D.D.C. 1954): “It is not denied that the person who it is claimed is the plaintiff’s father is a natural born citizen of the United States, having been born in the country.”
225 181 F. Supp. 934, 935-936 (D.D.C. 1960).
226 Nwankpa v. Kissinger, 376 F.Supp. 122, 123 (D.M.D. Ala. 1974).
227 700 F.2d 1156, 1160 (7th Cir. 1982), cert. denied, 462 U.S. 1132 (1983).
228 179 F.3d 1017, 1019 (6th Cir. 1999). Emphasis added. See also United States v. Carlos Jesus Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir. 2011), agreeing with the underlying legal accuracy of proposed jury instruction defining “natural born citizen” as including one born in the United States, without reference to the citizenship of one’s parents.
229 Hollander v. McCain, 566 F.Supp.2d 63, 66 (D.N.H. 2008).
