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.
Where've you been? They raised this back in the spring and it got laughed at then. There is absolutely nothing to it. McCain is a natural born U.S. citizen. So is Obama.
There is no problem with “natural born”...I can’t believe that anyone would seriously challenge that.
There is no problem with “natural born”...I can’t believe that anyone would seriously challenge that.
Statute was the same except that the rule giving citizenship requires that a person born to two parents who were married to each other, one of which parents was a citizen, the other not a citizen, gets citizenship only if the citizen parent lived in the US for ten years prior to the birth of which ten years, five must be after the age of 16. Since Obama's mother was only 18 at birth, she flunks the five year rule--Obama is not a citizen if born in Kenya which I assume from significant reported factual material he was.
All the statutory material is set forth; effective dates and relationship to the facts are described.
So if you want to sit here and argue the world is flat, you are welcome to do so. If you really want to address the legal issues, you pick up the statute and say here is the one that applies; here is why. You say Sec. 301 (or 309) applies--here is the subsection; here is what it says; here are the facts that would put Obama under the statute and make him a citizen. Read the opinion. Get a grip.
In that "§ 1401" is not the same thing as "§ 1409. Children born out of wedlock."
I have both statutes open in front of me--they are really different--[...]
Glad you agree.
[...]in what respect do you think I am confused exactly?
Exactly the way I said: "I think you’re confusing Sec. 1401 with Sec. 1409."
One of the things that is really irritating about dealing with posts here is this. I have been in the business of reading statutes since probably long before you were born. So I go into detail, showing you the subparagraph, all identified to specific effective dates and application to the facts at hand.
Then I get some garbage like I don't know what I am talking about and am confused.
Oh, so you type "1401" but you mean "1409"...yet everything you write is from 1401?
Sure.
Well I am sure I am wrong from time to time--but if you are really going to post something like this, you ought to say "well you are wrong because". This insulting "you are confused" doesn't make it.
Well, first of all, you are wrong because you are misquoting me. And secondly, you're wrong because you're posting text from a different section of the Code.
But maybe it takes some secret lawyer ninja trick (probably passed down while I was in diapers, no doubt!) to see how posting copious text from Sec. 1401 is appropriate to a point about Sec. 1409...?
You post nonsense about a statute on immigration hearings that really hasn't got anything to do with the issue (Pub.L. 97-116 amends Sec. 1447 which is the hearings statute and which has no application to any of the issues present here); then tell me I am confused. Who is confused? Give me a break
If that is all that Pub.L. 97-116 did, then I apologize. I was under the impression that it amended far more than Sec 1447, but I don't have time to check right now.
Fraudulentlyh gaining Secret Service coverage would be one possibility....right?
Which would be the act passed in 1952. According to that Obama would still be a citizen. But this whole line of discussion is really pointless because Obama was born in Hawaii and therefore he is a natural born U.S. citizen under the 14th Amendment.
Hardly. You cite a case which doesn't apply because the laws that case was decided under had been changed long before the decision was handed down.
So if you want to sit here and argue the world is flat, you are welcome to do so.
And if I did I would not be surprised to find you believing it, if it supported your bizzare poisiton. If you really want to address the legal issues, you pick up the statute and say here is the one that applies; here is why. You say Sec. 301 (or 309) applies--here is the subsection; here is what it says; here are the facts that would put Obama under the statute and make him a citizen. Read the opinion. Get a grip.
Which I did. I provided the link to the Immigration and Naturalization Act of 1952 which was in effect when Obama was born. The applicable section is Title III, Chapter 1, Act 301. Or didn't you bother reading the link I provided?
The allegations that the Birth Certificates so far provided come from those who are certified forensic examiners and have worked with law enforcement agencies for years — see techdude’s analysis at the Atlas Shrugged blog, the latest is here:
http://atlasshrugs2000.typepad.com/atlas_shrugs/2008/07/who-died-and-ma.html
I haven’t seen ANY analysis that says the documents are real by anyone who could be considered to be a reliable expert in the field.
See: More On Obama BC, Atlas Shrugs Confirms Opendna Image Not Original Forgery posted 7:32 AM EDT today.
Your case citation reference is wrong. Which case cited where?
The opinion specifically addresses the actual language of 301. The language you cited is subject to a specific effective date clause which applies only to persons born after November, 1986--since Obama was born in 1961, the language of 301 on which you rely does not apply to him. And the language your view replaces specifically excludes Obama because his mother didn't meet the five years after age 16 test.
All of these statutes are set out in the opinion above with specific references--which word is the one you have a problem with? I assume you have figured out that Section 301 is a reference to the Immigration and Nationalization Act which has been codified as 8 USC 1401--the language and the legislative source is the same.
There are only two ways to become an American citizen- by birth or by naturalization. I think we can agree on that. Clearly, those who are naturalized do not qualify as "natural-born" for purposes of the Constitutional requirements for becoming President. That just leaves us one class of citizens- those who are citizens from birth. I am not aware of any legal subdivisions within this second class. Are you?
A very brief legal answer to that argument is that the "eligibility" rule comes from Article II, Sec. 1, Par. 4 of the Constitution--Congress doesn't have the authority to dictate how that provision works because Congress has only one power in connection with Constitutional Law and that is to propose Amendments to the Constitution.
I suppose then that we would have to look at the Framers' intent with regards to this provision, as the Constitution does not clearly define "Natural Born." I think if we just look at the plain-meaning of those words, the conclusion should be that natural born means a citizen at birth. Otherwise, you end up with a tortured conclusion where the child of illegals who is born in LA can serve as President, but John McCain cannot.
Fraudulentlyh gaining Secret Service coverage would be one possibility....right?
I'm not sure there's any fraud involved. Even if one of the two were shown to not qualify for the Presidency, it would be very difficult to show that they acted fraudulently in that regard. Either one could quite truthfully say that they interpreted their status as being natural-born citizens. It would be next to impossible to show that they went into this election looking to commit fraud.
I kind of think this is a dead end. Both of these guys have almost certainly hired some top legal talent to make sure that there is no issue here. I've seem some claims that Obama was born in Kenya, but I have not seen any actual evidence to that effect. McCain was born in Panama, but he was clearly a citizen at birth.
How is this a ‘backhoe’, if anyone is getting buried it is the original fallacious fantasy claim:
“Seems Pam Geller’s computer forensic expert is feeling some heat over the Obama Birth Certificate from the state of HI. He has posted a long, self-promoting post on a pending breakthrough coming. I can hardly wait (yawn….). But he has done one thing - confirm my claim that the Opendna image cannot be the source of a BC forgery. ... There is no way the Opendna image could be used to create a HI BC forgery (paper version, with someone providing a fake seal, date stamp etc, or a mocked up computer image of these telltales from the reverse side). None. As I said - myth busted.”
http://strata-sphere.com/blog/index.php/archives/5649
The 3,000 posting thread we’ve been on was started by the claim - NOW DISPROVEN - that the OpenDNA guy “admitted” to forgery. Wrong! He only admitted to playing around with the KOs image and creating a new one, for fun. Analysis CONFIRMS that and DISPROVES the “Obama image is a forgery by OpenDNA” claim.
MYTH IS STILL BUSTED is right. There is no reason to dispute the Obama BC.
“I really don’t know why you people foolishly continue to tilt at this windmill. What a ridiculous waste of time.”
“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”.”
That’s BS. A claim was made that it was a forgery and it was quickly and decisively DEBUNKED.
http://strata-sphere.com/blog/index.php/archives/5649
What these mad, foolish people are doing are going from theory and supposition to the next one, in a feverish quest to ‘prove’ the conclusion they’ve already arrived at.
” It is especially interesting that even some of Barry’s supporters are admitting that the BC is problematic. “
Actually, that’s really uninteresting. It’s still a rabbit trail.
I haven’t seen ANY analysis that says the documents are anything but real by anyone who could be considered to be a reliable expert in the field. Hype, supposition and a blog-teaser comments are not enough.
” 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.”
You waste enough words pushing the bogus theory but cant even state the simple, clear facts supporting MCCain’s eligibility:
1. McCain is a citizen at birth, since both his parents were US citizens. This has been the US law since its earliest days.
2. A US citizen at birth is a natural-born citizen.
3. Hence McCain is eligible.
“The Constitutional eligibility question is separate from the citizenship question.”
No its not. If McCain was a citizen at birth, he is eligible to be President.
The law is clear that he was a citizen at birth, thus the law is clear that he is eligible to be President.
“Absent an amendment of the Constitution, Congress does not have the power to tell the Supreme Court what the Constitution means.”
Nor do you have the power to ignore the plain meaning of natural-born as understood in common law and in our laws since 1790.
” 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.”
It is irrelevent where McCain was born. Another rabbit trail. He’d have been a citizen at birth even if born in Mongolia.
” 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. “
You continue to push a bogus theory and ignore the massive weight of countervailing evidence, to push a conclusion most lawyer sees as somewhere between arcane and absurd.
This article on Volokh Conspiracy also goes into depth and says the same thing to clearly support the plain, standard view that McCain is clearly eligible:
http://volokh.com/archives/archive_2008_02_24-2008_03_01.shtml#1204265246
” If the drafters of the Constitution had wanted to require that presidents be born in the United States, they could have done so. Instead, they invoked the then-standard idea of natural citizenship as reflecting natural allegiance to the king or the state.
Standard 18th century dictionaries and commentaries couldn’t have been clearer on this point. ...”
They quote Blackstone
“To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.”
This basic English legal understanding carried over into the US and was used in the 1790 law, helpfully quoted on this thread. You are a natural born US citizen if your parents were US citizens.
“And the children of citizens of the United States that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States”. —First Congress, Act of March 26th, 1790, 1 Stat. 103.
The logical error some fall into is one of assuming that since birthright citizenship is the *main* way to become a natural born citizen, that it is the only way. One can be a natural-born US citizen (that is a citizen upon birth without having to undergo any other process) either by blood (jus sanguinis) or by soil (jus soli).
McCain is a natural-born citizen because both his parents were citizens.
See also:
http://stubbornfacts.us/politics/2008_election/mccains_eligibility#comment-13147
“There is scuttlebutt that Republican operatives went to Kenya a while ago to find proof of Obama’s birth and were successful having found a birth certificate as evidence.”
I call BS on this bogus fairy tale claim. Source for this fantasy?
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