Posted on 07/04/2008 9:10:39 AM PDT by David
This is to summarize the law on two issues: One, Citizenship of a person, one of whose parents is a Citizen, the other an alien; and, two, eligibility of a person born outside the geographical limits of the fifty states to serve as President of the United States under Article II, Sec. 1, Par. 4 of the U S Constitution.
This is addressed to Obama's status if he was born in Kenya and to John McCain's status on the record birth in Panama.
I do not intend to address any of the collateral factual issues. I take it as a given that it has been established that the Birth Certificate for Obama published on the several sites of his supporters is fraudulent. I have assumed that it will be established factually that Obama was born in Kenya although that is a developing factual inquiry. I also accept the factual analysis with respect to McCain that he was born in a hospital outside the limits of the U S Base in Panama.
Both issues, with respect to Obama, are limited by this proposition: If he was in fact born in Hawaii, he is a citizen; and he is eligible to serve under the Constitution.
The current relevant statute is Title 8 of the United States Code, Chapter 12, Sub-Chapter III, Part I, Sec. 1401. The specific provision in the current code is now (g) of the current Sec. 1401. However, as set forth below, essential elements of the current provision are not applicable to Obama.
Currently, Sec. 1401(g) provides: The following shall be nationals and citizens of the United States at birth: . . . (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 . . . .
This provision was modified to its present form in 1986 by Section 12 of Public Law 99-653 which substituted "five years, at least two" for "ten years, at least five".
Section 23(d) of Pub. L. 99-653, provided that: "The amendment made by section 12 shall apply to persons born on or after November 14, 1986."
Obama was born prior to November 14, 1986 (presumably sometime in late July or early August, 1961) so the amendment provided by Pub.L. 99-653 is not applicable to him.
So the law in place prior to November 14, 1986 provided that a person born "born outside the geographical limits of the United States . . . 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 ten years, at least five of which were after attaining the age of fourteen years . . . . "
Assuming Obama was born in Kenya, his mother, who was 18 at the time of his birth, could not have met the "prior to the birth of such person . . . five years . . . after attaining the age of fourteen". [Note: My copy of the US Code does not contain the legislative history of the "age . . . fourteen" provision. I have a 1990's copy of the code that says age sixteen; in my other office, I also have an early copy that says age twenty-one. I now believe that the statute in place in August of 1991 said "age sixteen" however the effective date of the change from 16 to 14 would be relevant if Ms. Dunham had been 19 but since she was not, Obama does not qualify even if the applicable law is in fact age 14 and thus we have not addressed that question.]
Thus, with respect to Obama, the answer is clear on the face of the statute--if he was born in Kenya, he is not a citizen at birth under the statute because his mother flunked the five years of residence prior to birth after age 14. Further, there is no doubt that he is not eligible to serve as president under Article II, Sec. 1, Par. 4 of the U S Constitution.
I also want to note that (g) continues with the language: "Provided, That any periods of honorable service . . . " which concludes with a separate effective date clause making the provision retroactive: ["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 . . . . "] The retroactive date applies only to the "periods of honorable service" clause and has no application to the Obama issue.
McCain is a little more straightforward. He was born (we have not confirmed but understand from sources we view as credible) to two U S Citizen parents in a hospital in Panama not on the U S Military base.
Sec. 1401 provides "[t]he following shall be nationals and citizens of the United States at birth . . . (c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person . . . . "
I understand but again have not confirmed, that McCain's mother met the residence qualification and thus McCain would be a citizen under that statute.
We have had considerable discussion regarding McCain's eligibility to serve as President under Article II, Sec. 1, Par. 4 of the Constitution and I do not intend to revisit all of it here.
The Constitutional eligibility question is separate from the citizenship question. Absent an amendment of the Constitution, Congress does not have the power to tell the Supreme Court what the Constitution means. It is doubtful that a birth in Panama, in the United States only under the Congressional fiction of the sovereign territory doctrine, would pass--and it appears (although again we have not confirmed) that McCain was not born in the sovereign territory in any event and thus does not qualify. Our own view, based on the facts as I understand them, is that it is likely that if the Supreme Court is faced with this issue, it would hold McCain is not eligible to act as President.
To summarize: It is clear law that if Obama was in fact born in Kenya as appears likely, he is not a citizen (absent a naturalization proceeding); and he is not eligible to serve as President. McCain, although he became a citizen of the U S under the two citizen parent rule, faces a legitimate Constitutional objection to his eligibility to serve as President.
I am not questioning whether Obama is a Citizen. Arnold Schwartenegger is a Citizen, but he is not a "Natural Born Citizen". And if Obama was born outside the United States and his father was not a Citizen, then Obama cannot be a "Natural Born Citizen".
Your status at the time of your birth is what determines whether you are a Natural Born Citizen.
If Obama was born outside the United States, then by virtue of the 1961 Supreme Court decision in Montana v. Kennedy, 366 U.S. 308 (1961) Obama would not be eligible to take the office of President.
§ 1409. Children born out of wedlock
(a) The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of this title, and of paragraph (2) of section 1408 of this title, shall apply as of the date of birth to a person born out of wedlock if—
(1) a blood relationship between the person and the father is established by clear and convincing evidence, (2) the father had the nationality of the United States at the time of the person’s birth, (3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and (4) while the person is under the age of 18 years— (A) the person is legitimated under the law of the person’s residence or domicile, (B) the father acknowledges paternity of the person in writing under oath, or (C) the paternity of the person is established by adjudication of a competent court.
(b) Except as otherwise provided in section 405 of this Act, the provisions of section 1401 (g) of this title shall apply to a child born out of wedlock on or after January 13, 1941, and before December 24, 1952, as of the date of birth, if the paternity of such child is established at any time while such child is under the age of twenty-one years by legitimation.
(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.
My research shows that that amendment was adopted in 1986 and therefore it was not in effect in 1961 and thus while it would make a person a citizen at birth, it would not make a person a "Natural Born" Citizen.
Thus while it would make Obama a Citizen, it would not give him "Natural Born" status. It would simply give him "Ex-Post Facto Legislatively Mandated Citizenship at Birth" status.
Thank you for all of the helpful information and analysis!!
If Obama pulls a legit Hawaii birth certificate out of his hat - he can be president.
(Actually, the author lost me here - in one instance he says mamaObama was too young at 19, in another he states that Obamassiah IS eligible)
If McCain was not born in a US Navy hospital - he faces a certain constitutional challenge if elected.
Sounds like loads of fun.
For analysis
Sec. 1409. Children born out of wedlock
TITLE 8, CHAPTER 12, SUBCHAPTER III, Part I, Sec. 1409.
SOURCE
(June 27, 1952, ch. 477, title III, ch. 1, Sec. 309, 66 Stat. 238; Pub. L. 97-116, Sec. 18(l), Dec. 29, 1981, 95 Stat. 1620; Pub. L. 99-653, Sec. 13, Nov. 14, 1986, 100 Stat. 3657; Pub. L. 100-525, Secs. 8(k), 9(r), Oct. 24, 1988, 102 Stat. 2617, 2621.)
AMENDMENTS
1988 - Subsec. (a). Pub. L. 100-525, Sec. 8(k), amended Pub. L.
99-653. See 1986 Amendment note below.
Subsec. (b). Pub. L. 100-525, Sec. 9(r)(1), substituted “before
December 24, 1952” for “prior to the effective date of this
chapter” and “at any time” for “before or after the effective date
of this chapter and”.
Subsec. (c). Pub. L. 100-525, Sec. 9(r)(2), substituted “after
December 23, 1952” for “on or after the effective date of this
chapter”.
1986 - Subsec. (a). Pub. L. 99-653, as amended by Pub. L.
100-525, Sec. 8(k), amended subsec. (a) generally. Prior to
amendment, subsec. (a) read as follows: “The provisions of
paragraphs (c), (d), (e), and (g) of section 1401 of this title,
and of paragraph (2) of section 1408, of this title shall apply as
of the date of birth to a child born out of wedlock on or after the
effective date of this chapter, if the paternity of such child is
established while such child is under the age of twenty-one years
by legitimation.”
1981 - Subsec. (a). Pub. L. 97-116, Sec. 18(l)(1), substituted
“(c), (d), (e), and (g) of section 1401” for “(3) to (5) and (7) of
section 1401(a)”.
Subsec. (b). Pub. L. 97-116, Sec. 18(l)(2), substituted “section
1401(g)” for “section 1401(a)(7)”.
EFFECTIVE DATE OF 1988 AMENDMENT
Amendment by section 8(k) of Pub. L. 100-525 effective as if
included in the enactment of the Immigration and Nationality Act
Amendments of 1986, Pub. L. 99-653, see section 309(b)(15) of Pub.
L. 102-232, set out as an Effective and Termination Dates of 1988
Amendments note under section 1101 of this title.
EFFECTIVE DATE OF 1986 AMENDMENT
Section 23(e) of Pub. L. 99-653, as added by Pub. L. 100-525,
Sec. 8(r), Oct. 24, 1988, 102 Stat. 2619, provided that:
“(1) Except as provided in paragraph (2)(B), the new section
309(a) [8 U.S.C. 1409(a)] (as defined in paragraph (4)(A)) shall
apply to persons who have not attained 18 years of age as of the
date of the enactment of this Act [Nov. 14, 1986].
“(2) The old section 309(a) shall apply -
“(A) to any individual who has attained 18 years of age as of
the date of the enactment of this Act, and
“(B) any individual with respect to whom paternity was
established by legitimation before such date.
“(3) An individual who is at least 15 years of age, but under 18
years of age, as of the date of the enactment of this Act, may
elect to have the old section 309(a) apply to the individual
instead of the new section 309(a).
“(4) In this subsection:
“(A) The term ‘new section 309(a)’ means section 309(a) of the
Immigration and Nationality Act [8 U.S.C. 1409(a)], as amended by
section 13 of this Act [section 13 of Pub. L. 99-653] and as in
effect after the date of the enactment of this Act.
“(B) The term ‘old section 309(a)’ means section 309(a) of the
Immigration and Nationality Act, as in effect before the date of
the enactment of this Act.”
EFFECTIVE DATE OF 1981 AMENDMENT
Amendment by Pub. L. 97-116 effective Dec. 29, 1981, see section
21(a) of Pub. L. 97-116, set out as a note under section 1101 of
this title.
REFERENCES IN TEXT
Section 405 of this Act, referred to in subsec. (b), is section
405 of act June 27, 1952, ch. 477, title IV, 66 Stat. 280, which is
set out as a Savings Clause note under section 1101 of this title.
No. The 1986 legislation specifically does not make him a citizen--it has prospective application only to person's born after November 1986. Obama was born in July or August of 1961.
Meeting Mama Sarah video
http://www.guardian.co.uk/world/video/2008/jun/06/obama.grandmother?gusrc=rss&feed=networkfront
Then why the 1952 reference?
Probably because of the Korean War. They wanted to clear up the status of children of servicemen in Korea.
FR is buzzing with more information and speculation concerning Obama’s citizenship status.
There is no chance that any American court will hold that John McCain, as someone born overseas to a parent in military service, is not a natural-born citizen.
There is no evidence that Obama was born anywhere but Hawaii, and no chance that any court will hold that he is not a natural-born citizen also.
I really don’t know why you people foolishly continue to tilt at this windmill. What a ridiculous waste of time.
Barack Hussein OBAMA was born on 4 August 1961 at the Queen's Medical Center in Honolulu, Hawaii, to Barack Hussein OBAMA, Sr. of Nyangoma-Kogelo, Siaya District, Kenya, and Ann DUNHAM of Wichita, Kansas. His parents met while both were attending the East-West Center of the University of Hawaii at Manoa, where his father was enrolled as a foreign student. When Barack Obama was two years old, his parents divorced and his father moved to Connecticut to continue his education before returning to Kenya.
When Obama was six, his mother married Lolo Soetoro, an Indonesian oil manager. In 1967, when Soetoro's student visa was revoked because of political unrest in Indonesia, Dunham and Barack, then in first grade, accompanied him to Jakarta, Indonesia. Obama's half-sister, Maya Soetoro was born after the family moved to Indonesia. Four years later she sent him back to the United States to live with his maternal grandmother.
Is all of this verifiable?
Question:
Why is McCain’s eligibility just now coming under scrutiny?
After all his service you would thing his citizenship status would not be in question.
This business of racing a woman in labor to a more provided for birthing center while under the auspices of the American Government (and the U.S. hospital facility) should be proof enough that he is and was born to U.S. Citizens within the “jurisdiction” of an American Off-Shore Military Installation.
Are we stating here is McCain had been born prematurely in an ambulance on his way to an American Military setting, he would not be granted birth status of an American. What rot!
Talk about picking nits...
Please note:
1) “(2) the father had the nationality of the United States at the time of the person’s birth”
Obama’s father was not a U.S. national, so 1409 generally would not apply if it turned out the parents were unmarried.
2) “shall be held to have acquired at birth the nationality status of his mother.”
In a response to you on another thread, I explained the following: “While most people and countries use the terms “citizenship” and “nationality” interchangeably, U.S. law differentiates between the two [see Section 101(a)(21)-(22) of the Immigration and Nationality Act (INA)]. Under current law all U.S. citizens are also U.S. nationals, but not all U.S. nationals are U.S. citizens.” http://www.state.gov/documents/organization/86755.pdf
So leaving aside the “ex post facto” nature of the claim, even if Obama were a NATIONAL by virtue of that retroactively applied legal provision, it would NOT make him a CITIZEN etc.
3) FWIW, I ran across some additional information that may be of general interest: “A marriage that did not conform to the laws of the country or state in which it was performed may be a void marriage, but only after declared so by an
appropriate authority, usually a court in the jurisdiction
where the marriage occurred. Prior to such judicial
declaration, the marriage may be considered voidable.
A voidable marriage is considered valid for all purposes
unless and until annulled or voided by the court. Even
after a marriage is voided, there is every likelihood that
the children’s status will not be affected. Every state in
the United States, for example, considers children of a
void marriage to be legitimate (see 7 FAM 1133 Exhibit
1133.4-2, Part II). http://www.state.gov/documents/organization/86757.pdf (pdf p. 37)
Thus, IF Obama’s parents really were “married” but someone now wanted to challenge its legitimacy on grounds that it was void given Sr’s already being married, this would not affect the legitimacy of the marriage in terms of which set of citizenship rules might apply to an out-of-country birth.
Oh, I dunno. Seeing that every available published copy of Barry's BC (COLB) is fraudulent, or a forgery, or a hoax, I think it is worth discussing by all "you people". It is especially interesting that even some of Barry's supporters are admitting that the BC is problematic.
Oh, I dunno. Seeing that every available published copy of Barry's BC (COLB) is fraudulent, or a forgery, or a hoax, I think it is worth discussing by all "you people". It is especially interesting that even some of Barry's supporters are admitting that the BC is problematic.
It doesn't mention anywhere that his parents were married. How could there be a marriage, dad already had a wife.
As far as I can figure out they met when classes began in September, she was pregnant by November, and Barry Dunham popped out 9 months later.
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