Obama and McCain: Citizenship And Eligibility--Legal Issues

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 think you’re confusing Sec. 1401 with Sec. 1409

Fine. I'll believe anything. In what respect?

I have both statutes open in front of me--they are really different--in what respect do you think I am confused exactly?

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.

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.

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

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.

This is addressed to the McCain issue?

No doubt McCain is a citizen. Question is whether he is a "natural born" citizen under Article II, Sec. 1, Par. 4 of the U S Constitution. Although there is disagreement, the usual consensus among the Constitutional lawyers is that he is not because the usual interpretation view is that "natural born" means born in the geographical U S.

I have addressed this issue several times and set out in detail the analysis that gets to that result--I urge you to read it.

That analysis is certainly not a "final word"--the courts might get to a contrary result.

My own predictions about the outcome as to McCain is affected by the pendency of the issue with respect to Obama. If a legal attack is mounted with respect to Obama (there are cases pending in several district courts challenging McCain; none challenging Obama yet as far as I know); existence of challenges to both will occasion a more careful examination of the issue with respect to McCain and in that environment, a political decision would likely disqualify both.

There are only two types of citizens- natural-born and naturalized. No other type of category exists. You are proposing the existence of someone who is an American citizen at birth, but not a "natural born" citizen. That is a completely illogical creation. John McCain was not naturalized, he is qualified to be President.

I'm curious why you think "the usual consensus among the Constitutional lawyers is that he is not." Do you have some backup for this?

you acquired U.S. citizenship at birth McCain, is a natural born citizen...It was given to him at birth. I don't see how he could be considered otherwise. In fact, he were not given natural citizenship then there are virtually millions of AMerican who were born on Army bases who should not be considered citizens. Obama, if he were born in Kenya, is different. It's like apples and oranges. McCain has also hidden nothing. Obama, continues to stonewall the issue. Either way, I agree with you, that this needs to be addressed in the courts soon.

so we wait to see if the man is elected, and then you contest it in court? this is rediculous. It needs to be ferreted out now.

Essentially, yes. American courts don't rule on something that could potentially happen. There needs to be an actual legal controversy before them. Neither Obama nor McCain have been elected to the Presidency. At this point, asking the courts to rule on their eligibility for the office would be like asking them to rule on the eligiblity of you or me- there is simply no legal question before them.

the question is, Are McCain and Obama eligible to become president of the United States? the voters have a right to know this BEFORE they vote..

I agree that the voters have a right to know, but the courts are not the appropriate place to find the answer.

...among the Constitutional lawyers is that he is not because the usual interpretation view is that "natural born" means born in the geographical U S.

The original interpretation was that you are "born in the USA geographically" to be considered a natural born citizen. That has been modified over the years, as has been shown on this forum. McCain or Obama may be deemed natural born citizens even if they were not born on USA soil.

So I fail to see where you're coming from with the idea that there is a usual consensus among constitutional attorneys, (Like Obama?) that you have to be born on USA soil. Can you show me your source?

So I fail to see where you're coming from with the idea that there is a usual consensus among constitutional attorneys, (Like Obama?) that you have to be born on USA soil. Can you show me your source?

Well you can look at a number of sources that have been posted on the other thread setting out the legal analysis.

But my own sources--well I am a tax lawyer; and I am admitted to practice before the Supreme Court; and I am in DC from time to time where I deal with the legal community; and most of them view me as a right wing republican; so I hear about what the guys who go down to the Court think about these current quasi-legal political issues.

See this particular issue has been around for a long time. Extensive attention was devoted to the Constitutional provision when Goldwater was a candidate--he was born in Arizona territory. The legal challenge was not pursued because there was a political consensus that he would lose which he did; however the view at the time was that he would be likely to be viewed as in compliance with the Constitutional requirement for the reason that the territory of Arizona was now included in the US. That hasn't happened with either Panama or Kenya.

I'm curious why you think "the usual consensus among the Constitutional lawyers is that he is not." Do you have some backup for this?

Well I will turn that around on you--do you know of any legal Constitutional Law authority for the proposition that there are two kinds of American Citizens--two specific classes with defined rights and none other?

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. If Congress could define blue eyed persons born within 120 yards East of the Yellow river as Natural Born citizens, it could modify operation of this clause. The Court would usually not uphold that kind of action by legislation.

A direct answer to my point about "the usual consensus among Constitutional lawyers . . . " is that I talk to guys who argue cases at the Court and I talk to a number of lawyers in the political area and that is what I think they say.

As to legal authority, I think I have set out somewhere on this thread, a legal opinion that specifically addresses the Constitutional interpretation considerations that I think would lead the Court to that result. And you too can see the articles in the general press--just do a Goggle; at best, there is doubt (because there is no direct Supreme Court decision authority); the guys who express an opinion are of the view, as am I that McCain doesn't make the Constitutional eligibility test to serve as president.

In fact, he were not given natural citizenship then there are virtually millions of AMerican who were born on Army bases who should not be considered citizens. Obama, if he were born in Kenya, is different. It's like apples and oranges. McCain has also hidden nothing. Obama, continues to stonewall the issue. Either way, I agree with you, that this needs to be addressed in the courts soon.

As to your first sentence, no not so.

Everyone concedes that McCain is a citizen under the two parent rule. No Doubt. And I assume you know he was not born in the Zone on the base but instead in Panama in a civilian hospital. His birth certificate is posted on the main thread.

So no, there are not millions of Americans born . . . either because they too, for the most part, have US Citizen parents.

As to Obama, it's different because under the narrow precise rules about how a person born outside the U S to two parents who are married to each other gets U S Citizenship, he flunks. No one has come up with a statutory analysis that makes him a citizen if he was born in Kenya which I believe that he was.

And therefore, I also think he doesn't come close to eligibility to act as President under the Constitution either.

It's not a righteous conduct issue--it's a simple statutory and Constitutional Law question.

David,

I agree with your summary of what you think about Obama. I’m aware that McCain was born in a hospital off the naval base. Anyone who would deny him natural born citizenship is using some archaic interpretation.

Obama has the problem. I think neither the McCain or Hillary camp want to spring this, plus I would imagine that there are detectives and FBI agents behind the scenes looking into this as we speak.

I’ll post this again. This is the law when McCain was born. I think it’s pretty clear. He was a citizen right from birth.

2. May 25, 1934 to January 12, 1941

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.

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.

No. The person in the Supreme Court case was born in Italy in 1906 so he would have fallen under the laws in effect at the time. If Obama was born overseas, and I should point out that nobody has offered any evidence that he was, his citizenship would be decided by the Naturalization laws in place in 1961 and I believe that would be the Immigration and Nationality Act of 1952.

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.

I believe your research is flawed. The quote was from the INS Act of 1953, which can be found here. As near as I can tell that was the law in effect in 1961 when Obama was born. According to the provisions found in Act 301 and Act 309, Obama appears to be a natural born citizen even if he was born overseas.

Your #97: I don't know why you keep posting that. No one has any argument with the proposition that McCain is a citizen and was one at birth, just like Barry Goldwater, who was born in Arizona. But like Goldwater, McCain has a problem with the "natural born" rule in Article II, Sec. 1, par. 4 of the Constitution.

McCain's problem is worse than Goldwater's problem was because in Goldwater's case, prior to the nomination, Arizona had been incorporated into the territory of the United States. Panama has not. Therefore, Constitutional lawyers who read that as the requirement of the natural born rule view McCain as missing eligibility to act as President. My opinion is that is the result the Supreme Court is likely to reach if it gets the case.

You should note that someone thinks enough of that probability to have spent a hundred thousand dollars or so to start a number of District Court cases seeking to decertify McCain's delegates on the grounds that he is not Constitutionally qualified.

So far, no one has done anything to seek that remedy against Obama.

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