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 took a quick look at the U.S. Code for any provisions regarding procedures for establishing qualifications to serve as president and could find nothing. I am also curious to know if the Supreme Court has ever construed Art. II, Sect. 1, fifth paragraph (I doubt it). Also, who would have standing to contest the qualifications of the winner of the electoral college, and who would have the burden of proof in a proceeding?
McCain is eligible to be President. The son of a serving naval officer and his U.S. citizen wife will qualify even if he was born on the moon.
Obama is still a question mark. Is there any documentary evidence where he was born? I can’t imagine why Barry’s mother would have left Hawaii to give birth, but Obama’s behavior is certainly suspicious.
Would not McCain father also meet the standard since he was in the service and on US territory (Navy ships/bases) during overseas deployments?
I have to agree with you.
§ 1409. Children born out of wedlock . . . 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 . . . .
We are rapidly drifting into an area where I have to spend more time than I have available doing statutory analysis. I am not an immigration lawyer; I am a tax lawyer which is of course a more extensive and complex statute but one with which I am very familiar.
But the point you raise is obviously correct on the statute and the answer I believe is this (and it is not resolved completely by P-Marlowe's response hereto in #4 although his conclusion is in fact accurate).
The actual effective date, as I suspect you have already concluded, is found in the effective date notes under 8 USC 1101 and is from Section 309(b)(15) of Pub. L. 102-232 which provides that "The amendments made by section 8 of the Immigration Technical Corrections Act of 1988 [Pub. L. 100-525, amending this section, sections . . . 1409 . . . shall be effective as if included in the enactment of the Immigration and Nationality Act Amendments of 1986 (Public Law 99-653)." That Act, as set out above, applies only to persons born after November, 1986 and is thus inapplicable to Obama.
Note further, that to be subject to this provision, he is going to have to demonstrate he was born out of wedlock--on the current record, he claims his parents were married. And most important, he will need to demonstrate that he was born outside the US--thus disqualifying him from serving as President under Article II, Sec. 1, Par. 4 of the Constitution which is presumably the essential question.
Probably because of the Korean War. They wanted to clear up the status of children of servicemen in Korea.
Correct again. You too have done some very capable statutory research.
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.
Is all of this verifiable?
No. That's the point. The only support for any part of the first sentence is the fraudulent Birth Certificate.
But that is out of bounds on this topic--I start with the proposition that if he could demonstrate that he was born in Hawaii, he wins, and the further proposition, that the current state of the record at least raises a strong inference that he was born in Kenya. For details, see other threads.
I am only going to respond to a very narrow part of this.
Article II, Sec. 1, Par 4 provides that a person who does not meet the test is not "eligible" to be President. Thus all of his official acts would be subject to challenge as void, one at a time, in any available District Court.
This is interesting, Alice.
Would it be considered impertinent to ask where Stanley Ann lived after becoming pregnant? I would assume that she would have not been permitted to continue to stay in a dormitory back then.
Did she have an off-campus apartment? Did her parents come to Hawaai for the birth of the baby? Was she living with Barack Senior at the time? Any rental records or Uni records available?
Inquiring minds really would like to know these details.
These allegations are coming from people who don't know the difference between a birth certificate and a certified copy thereof.
-ccm
Natural Citizen status
A commissioned officer of the military or member of the government’s diplomatic corps stationed overseas whose wife gives birth to a child not necessarily or specifically on a U.S. military installation should be considered a natural born citizen. A commissioned officer in the military can be the senior representative of our government in the area especially so if no diplomatic person is present. Thus, how John McCain could not be considered a natural born citizen as called for in the Constitution to be president. Maybe someone can provide me the legal basis that the Supreme Court could rule against him.
August of 1961 would have been in the middle of Summer Break. It would not have been inconceivable that she would have gone to Kenya for the Summer to visit his family.
No one can dispute that the "original" is no where to be seen, and that is a legitimate concern to some, and a waste of time to others. It is worth discussing since there is a veil of secrecy or at least a concerted effort to hide something. Many of us know full well the differences between a BC, a COLB, a certified copy, and an original. It is the original many folks would like to "see" to put it all to rest.
Blogger admits Hawaii birth certificate forgery, subverting Obama claims (Uh-oh)
All of this is somewhat amusing speculation. But the reality is that no court, including the U.S. Supreme Court, is going to rule against the eligibility of either Obama or McCain without ironclad proof that he is not a citizen.
In McCain’s case, the courts will interpret the somewhat-ambiguous phrase “natural born” in the same way that various legal codes have defined it. In other words, the courts will either throw out any challenges as being frivolous or the challengers not having standing, or if a court actually issues a ruling it will adopt a looser definition of “natural born” than one which is solely limited to births within a state or territory of the United States.
In Obama’s case, he needs to do nothing but ignore the issue. There is a prima facia presumption that he was born where he says he was born — in Hawaii. He undoubtedly has a passport proclaiming that fact. Overturning that presumption would require strong documented proof that he was not born in Hawaii. Contrary testimony from eyewitnesses about events which happened decades ago will not carry much weight, even if those witnesses were willing to repeat their statements in court. Nobody is likely to have standing to pursue a court action and force discovery of documents from Obama.
If hard proof was somehow produced that Obama was born in Kenya, then I agree that the law would rule him ineligible to be President, given the other circumstances. There is a possibility that the law could be changed to make him ex post facto eligible, but that’s highly dicey.
Mere speculation will not accomplish anything. Exposing a jpeg posting of a “birth certificate” as being altered will not accomplish anything. Obama can and will continue to ignore the whole thing. If he is directly asked about it he will not give a direct answer but will attack the politics of the question.
The chance of hard evidence being uncovered which will block an Obama Presidency is extremely small.
FYI, “Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth.”
http://en.wikipedia.org/wiki/Natural-born_citizen
So I disagree with your claim about natural born citizen status being automatically conferred on those born to military officers or diplomats stationed outside US. I agree with David, McCain’s claim is not “settled law” for reasons explained in the above article, provides a brief, but reasonably good account of what the constitutional issue is.
However, I do think McCain will prevail since if it got to the SC, the Court for the first time would have to ponder original intent. Since natural born is no way explained in the Constitution or Federalist Papers, it would appear that the Founding Fathers saw no particular need to explain a phrase whose meaning at the time was so well understood. So to deduce what that meaning might have been, the SC quite naturally might examine the very first statute passed by Congress in response to their constitutional duty to specify the rules for naturalization. But in deciding to whom such rules applied, Congress naturally (and unavoidably—since Constitution didn’t do so) had to define to which individuals the naturalization requirements would have to apply.
So in the statute enacted March 26, 1790 [just 3 years after the Constitution was ratified] Congress included the following language: “And the children of citizens of the United States that may be born beyond sea, or outside the limits of the United States, shall be considered as natural born citizens.” Since a sizable number of the members of that Congress previously served as Framers of the Constitution, this statute provides a very solid insight into how this term was viewed and used contemporaneously. Indeed, any argument that the Framers DIDN’T view children born outside the US of citizen parents would be hard put to explain how that statutory language came to be crafted.
So I think McCain’s OK regardless of where he was born: all that matters is that both parents were U.S. citizens—a claim that to my knowledge is not in dispute.
So why are we going thru this. DEMAND to see it. Is this of any interest to RUSH & talk radio or are they afraid to touch it as many are. Don’t expect anything from the corrupt “Two-Party Cartel”.
Probably because of the Korean War. They wanted to clear up the status of children of servicemen in Korea.
http://en.wikipedia.org/wiki/Immigration_and_Naturalization_Act
Thank you so much for starting this thread and your info.
Regarding McCain only - this issue has come up before for George Romney 1968:
“It is notable that while [George] Romney was born in Mexico [in 1907], he was still considered to be a viable and legal candidate to run for office [1968 Presidential candidate]. His Mormon grandfather and his three wives fled to Mexico in 1886 but none of them ever relinquished their citizenship. While the Constitution does provide that a president must be a natural born citizen, the first Congress of the United States in 1790 passed legislation stating that “The children of citizens of the United States that may be born beyond the sea, or outside the limits of the United States, shall be considered as natural-born citizens of the United States.”” from Wikipedia
The key there is the plural “citizenS”. John McCain was also born to TWO citizenS.
I’m not a lawyer, but I have not read anything that ever changed the 1790 law when the child is born abroad anywhere to TWO US citizens - that law still stands.
All of the complications about Obama are because he only has one citizen parent. And I agree with so many - IF Obama was born outside the US, he is not a natural born citizen although he may be a US national.
Stanley Ann Dunham dropped out of UofH after the first semester Fall 1960 (per a freeper post in one of these BC threads).
Supposed “marriage” of Obama Sr. and Ann in February 1961 in Hawaii (various sources, try theobamafile.com for photo).
Where was she from February 1961 until August 1961?
Next known appearance is Mercer Is., WA in late August 1961 with her new baby (per the friends she visited there, no link, sorry).
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