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.
done!
The information about McCain’s birth and status as a natural born citizen is based on publicly available information, but not (as far as I know) documentarty sources. McCain needs to submit all the relevant documents relating to his birth so they can be subjected to the same kind of analysis as has Obama’s certificate of live birth.
The Law is often about picking nits.
“The Law is often about picking nits.”
True - I wrote that when I had enough of this going round and round.
If either candidate has an iffy qualification for admission as the President of the United States of America, it should be the first item on the credibility list yes?
Why are we now doing the dance?
In case y’all missed it on the other thread, Barbara Olson’s (BKO) widower Ted wrote the analysis on McCain’s eligibility.
http://mccaskill.senate.gov/newsroom/record.cfm?id=297116
Thanks for the tip... will go have a look see.
Ah ha....Thank you so much - I recall seeing that article a couple of days ago and couldn’t understand why people were still bringing up McCain’s status.
The business of McCain’s elibility has already been taken care of - which figures - he respects the way things are done - and in so doing - he respects the people of the nation.
Obama would skate through on a pin head if necessary hoping to obfuscate any truths which may crop up along his bumpy road.
The difference between the two men is astounding when one considers the position they are applying for.
It does matter if they are not eligible to run as President.
I think the Congress voted to approve McCain's eligibility. This was scrutinized when he ran in 2000 and more so this time. So as far as McCain is concern, his eligibility has been completely vetted. Regarding Obama, it is not even close to being vetted. The man is hiding something.
What amendment was adopted 1981?
I believe that the 1981 amendment (Pub. L. 97-116) affected only (a) and (b), not (c). Thus, he would be a natural born citizen.
Bookmark.
Bookmark.
Care to explain?
So what you’re saying is...at the moment, Obama is inelligible to take the oath of office, however, no court will be willing to challenge this and he will continue on.
I assume that once in power, they will quickly move to legalize/legitamize his term by changing whatever law neccessary.
If that’s the case, then there is nothing that can stop Arnold from the same goal. Whatever the fallout from Obama, it bears a direct effect on Arnold’s ambitions.
What amendment was adopted 1981?
I believe that the 1981 amendment (Pub. L. 97-116) affected only (a) and (b), not (c). Thus, he would be a natural born citizen.
Marlowe is talking about 1986, not 1981. The 1986 amendment issue is covered by the following:
"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."
Pub.L. 97-116 amends Sec. 1447 which is the hearings statute and which has no application to any of the issues present here.
Bottom line, if Obama was born in Kenya as I assume that he was, he is not a citizen because his mother flunks the ten of which five test in Sec. 1401(g); by definition, he is not eligible to serve as President, he is not a citizen at all. If what you are attempting to do is reference the uncertainty about Sec. 1407, that statute addresses the statute of children born out of wedlock and offshore to a Mother (Sec. 1407(c)) who is a citizen and a Father who is not a citizen. It has no application to Obama whose parents were married.
Care to explain?
Explain what? That is Article II, Sec. 1, Par. 4 of the U S Constitution. The important word is "eligible"--even if he gets elected, all of his acts as President, each one, one at a time, are subject to challenge as void and unlawful because he can not hold the office.
No on all three counts. They couldn't get "Congress" to do anything. So what they passed was a "sense of the Senate" resolution--amounts to a direction from the Senate to the Supreme Court how to rule if the argument gets there. The guys who argue cases to the Supreme Court all say usually the Court reacts adversely to that kind of direction.
No scrutiny and no vetting either. Political argument by the Solicitor General and other Political lawyers that it would be unfair to deprive the son of a officer serving his country of a Constitutional privilege because of the location of his father's service. Usual Supreme Court response to that argument is that is why the Amendment process is available in the Constitution.
If you feel strongly about it, adopt a Constitutional Amendment--you still have six months; get the states to ratify it. Then you can feel better.
In my opinion, if the issue gets to the courts, McCain is not eligible to be President of the United States--although anyone reading this should recognize the issue as subject to argument and a contrary result.
I think this is nonsense. He is a natural born citizen of the USA. If anyone has an issue, it’s the guy who won’t post his birth records.
I think this is an issue for the courts to decide if it comes down to that.
Both parents are US citizens and have resided in the USA.
Obama has the problem here.
2. May 25, 1934 to January 12, 1941
If you were born between May 25, 1934 and January 12, 1941, you acquired U.S. citizenship at birth if both your parents were U.S. citizens and at least one lived in the United States before you were born. You didn’t have to do anything special to keep your U.S. citizenship.
You could also get U.S. citizenship if only one of your parents was a U.S. citizen, as long as that parent lived in the United States at some time. If your U.S. citizenship came from only one parent, you would have been required to reside in the United States for at least two years between the ages of 14 and 28 in order to retain your citizenship. If the one U.S. citizen parent was your father and you were born outside of marriage, the same rules applied if your father legally legitimated you.
This is from FIND LAW and posted on FR earlier today.
4. December 24, 1952 to November 13, 1986
If, at the time of your birth, both your parents were U.S. citizens and at least one had a prior residence in the United States, you automatically acquired U.S. citizenship with no conditions for retaining it.
If only one parent was a U.S. citizen at the time of your birth, that parent must have resided in the United States for at least ten years, at least five of which had to be after the age of 16. There are no conditions placed on retaining this type of citizenship. If your one U.S. citizen parent is your father and you were born outside of marriage, the same rules apply if your father legally legitimated you before your 21st birthday and you were unmarried at the time. If legitimation occurred after November 14, 1986, your father must have established paternity prior to your 18th birthday, either by acknowledgment or by court order, and must have stated in writing that he would support you financially until your 18th birthday.
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