This week, the Supreme Court will likely consider whether to grant review in in a case challenging the eligibility of President-elect Barack Obama due to his alleged foreign birth or his lack of “natural born” status. In the meantime, another constitutional question of eligibility is being raised over Hillary Clinton’s nomination as Secretary of State. I will be discussing both issues tonight on MSNBC Countdown.
The odds are strongly against the Supreme Court taking up the case from New Jersey questioning Obama’s eligibility. The lawsuit was originally filed on behalf of Leo Donofrio against New Jersey Secretary of State Nina Mitchell Wells to challenge Obama’s right to run for president. While some lawsuits allege that Obama is ineligible due to his alleged birth in another country like Kenya, Mr. Donofrio has written to me to clarify that this is not his argument. Here is part of his email to me:
My law suit challenges his status as a “natural born citizen” based upon the fact that his Father was a British citizen/subject. Mr. Obama admits, at his own web site, that he was a British citizen/subject at birth. He was also a US citizen “at birth”. He does not have dual nationality now, but the Constitution is concerned with the candidate’s status “at birth”, hence the word “born” in the requirement. . . . I have repeatedly said, over and again, that I believe Obama was born in Hawaii. I have criticized everyone who has said Mr. Obama is not a citizen. I believe he is a “native born citizen”, but not a “natural born citizen”. The law suit is based upon what distinction the framers drew between the requirement for a Senator and Representative, which only requires “Citizen” status as opposed to the requirements for President, which requires “natural born Citizen” status.
Other lawsuits focus on the foreign born question, as shown below. Obama insists that he was born in Hawaii and has an authentic birth certificate establishing that he is a “natural-born” citizen. The argument over dual citizenship is novel, but in my view inherently weak. Given the ambiguity of the term, it is likely that the Court would opt for the more expansive reading. The Supreme Court is loathe to undo the results of an election. Clearly, it must do so when there is a clear constitutional or statutory flaw. However, the institutional culture of the Court weighs heavily to avoid such confrontations except in the most unavoidable circumstances. Members view the institutional integrity of the Court as requiring such institutional restraint. One could call this “political” or “cultural” or “institutional”, but it is an overriding value. I do not agree with the narrow view of standing to block cases on this kind. However, on the merits, the Court is more likely to adopt the broader view of natural born citizen unless the test clearly bars such an interpretation — it does not in my view. For those of us who comment on the likely outcome of Supreme Court, the odds on this one are long and obvious. Historically and legally, this is simply unlikely.
Litigants want a court to review the original birth certificate, which is locked in a state vault. However, they face serious standing problems. I believe that these lawsuits are meritless, but I have great problem with these standing barriers to review. Standing has been so narrowed in the last few decades that there are now some constitutional provisions that seem unenforceable in court for lack of anyone with standing. Moreover, I am not sure why the original isn’t simply produced for a more open review. Today it was reported today that the certificate was reviewed by an independent group and a conservative organization, which accepted its authenticity.
It is a shame for such cases to be resolved on purely technical standing grounds. This is the type of claim that should not be allowed to fester and enter the realm of conspiracy theory on the blogosphere. This is precisely what happened with Chester Arthur who claimed that he was born in Vermont but was thought to have been foreign born in Canada just across the border. The value of court review is to remove such clouds of doubt and to assure citizens that the constitutional requirements have been satisfied. I have included the factual allegations of one complaint below.
It was inevitable that we would deal with this controversy since both John McCain and Barack Obama had people challenging their eligibility. However, still stinging from the Bush v. Gore controversy, this is not the type of case that either conservatives or liberals on the Court will likely embrace — absent the strongest possible evidence.
Assuming (as is virtually certain) that Obama is eligible to give anyone a Cabinet position, there remains the question of whether he can give one to Hillary Clinton.
Article 1, Section 6 of the Constitution says the following: “No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time.”
The salary for Secretary of State was in fact increased during Clinton’s term even though it was an automatic provision. That increase of $4,700 could prove costly to Clinton. [Actually, I am most curious about Clinton’s towering campaign debt. She has been unsuccessful in getting Obama supporters to pay for her debt after the bruising campaign. As a senator, she could still hold fundraisers, but, as Secretary of State, new limitations would apply. I am curious whether those negotiations with the Obama staff included an agreement to assume the debt.]
Professor Larry Tribe has argued that, because the raise was automatic, it was not a true vote to increase the salary:
“I am, finally, influenced by the fact that the salary increase at issue here was created not by any enactment for which Senator Clinton voted or on which she had any opportunity to vote. Rather, that increase was created by a statute enacted well before Hillary Clinton was elected to the Senate. My understanding is that the 1990s cost-of-living statute in question, 5 U.S.C. Sec. 5303, automatically increases the salaries for a number of federal offices, including that of Secretary of State, provided the President does not certify that the increase would be inappropriate.”
I am not convinced despite my respect for Tribe. The Emoluments Clause applies when the office’s salary “shall have been encreased.” Thus, while it is often presumed that it was by vote (and indeed Clinton voted for appropriations including the higher salary) it is the increase during the term that matter. Notably, one of the early proposed drafts of the clause included language limiting it to an increase of emoluments “by the legislature of the U[nited] States,” which would have required a direct vote but that was changed to the more general language. Moreover, the vote on appropriations with the increased salary further reinforces the applicability of the prohibition.
My guess is that she would willingly pass on the increase — despite the symbolism of the pay gap between men and women in the Cabinet. Now, that is a pay parity controversy in the making. However, it is not simply a matter of asking to be paid less.
Taking the language on its face, it would seem to bar Clinton – at least until 2013.
Democrats may try to pull a Saxbe. Not Saxby Chambliss , Ohio Sen. William Saxbe when he was nominated to be President Nixon’s attorney general in 1974. Texas Sen. Lloyd Bentsen also got around the problem when he was nominated as President Clinton’s Treasury secretary in 1993. Congress has lowered the salary to make them eligible. Technically, that would not seem to satisfy the rule since it is triggered by a vote to increase the salary. It was one of the Framer’s protections against self-dealing and conflicts of interest. However, Clinton may rely on the standing issue — arguing that no one has authority to force review of her eligibility. She will likely be successful, but once again the use of standing to avoid a court review is inimical, in my view, to the protection of constitutional values.
My concern is the way that this question has been dismissed as an inconvenience that should be circumvented by a clever piece of legislation. After years of rightful indignation over Bush’s violations of the Constitution, Democrats should not take power by embracing the same dismissive attitude toward the language of the Constitution. Many of these arguments are creative, but they have to work too hard to avoid the obvious meaning of the Constitution.
For the full story on Clinton, click here.
For the full story on Obama, click here.
In one of the past complaints (on behalf of Plaintiff Steven R Marquis in Washington state), the material facts are presented below:
5.3. There are questions as to where Obama was actually born; in the United States or abroad but subsequently registered in Hawaii. There are further questions regarding Obama’s United States citizenship, if he ever held such, being expatriated and his failure to regain his citizenship by taking the oath of allegiance once he turned eighteen (18) years of age. There are additional questions regarding Obama’s multi-citizenships with foreign countries, which he may still maintain. To date, Obama has refused to prove he is qualified under the U.S. Constitution and his eligibility to run as President of the United States despite requests and recent opportunities to do so in Federal Court.
5.4. The “certificate” that Mr. Obama has posted on his official WEB site is a “Certification of Live Birth,” and not a “Birth Certificate” from Hawaii. There is no indication on even this certificate as to specifically where the birth took place.
5.5. Researchers have claimed to have been unable to locate any birthing records in island hospitals for Barak Obama’s mother. Mr. Obama has offered none for review.
5.6. Three forensic document experts have published extensive reports claiming that there is evidence of tampering on even the Obama WEB site displayed certificate.
5.7. Numerous Freedom of Information Requests have been sent to Officials in Hawaii with no response from the public officials nor has Mr. Obama granted access for release of the information lending to the concern over the veracity of the attestation on the candidate’s application for candidacy for the office of President of the United States.
5.8. The facts are undisputed by Obama that his mother, Stanley Ann Dunham, was a U.S. citizen however, his father, Barack Obama, Sr., was a citizen of Kenya. Obama’s parents, according to divorce records, were married on or about February 2, 1961.
5.9. Obama claims he was born in Honolulu, Hawaii on August 4, 1961; however, has never given the name of the hospital he was born in; whereas there are reports that Obama’s grandmother on his father’s side, half brother and half sister claim Mr. Barack H. Obama was born in Kenya. Reports further reflect that Mr. Obama’s mother went to Kenya during her pregnancy. Wayne Madsen, Journalist with Online Journal as a contributing writer and published an article on June 9, 2008 stating that a research team went to Mombassa, Kenya, and located a Certificate Registering the birth of Barack Obama, Jr. at a Kenya Maternity Hospital, to his father, a Kenyan citizen and his mother, a U.S. citizen. There are claims of records of a “registry of birth” for Obama, on or about August 8, 1961 in the public records office in Hawaii, but these have not been released for scrutiny. It is alleged in the Federal trial and is a matter of much general speculation that Mr. Obama’s mother was prevented from boarding a flight from Kenya to Hawaii at her late stage of pregnancy, which apparently was a normal restriction to avoid births during a flight. It is likely that Stanley Ann Dunham (Obama) gave birth to Obama in Kenya, after which she flew to Hawaii and registered Obama’s birth.
5.10. Regarding the alleged birth of Barack Hussein Obama in Honolulu, Hawaii, it is variously circulated that Obama’s birth is reported as occurring at two (2) separate hospitals, Kapiolani Hospital and Queens Hospital. Obama has provided no proof of birth from of either of these or any other US based facility. He has made no effort to address these public concerns.
5.11. There are no published or known hospital birthing records for Stanley Ann Dunham (Obama), Obama’s mother. There are only claims of records of a “registry of birth” for Obama, on or about August 8, 1961 in the public records office in Hawaii.
5.12. There is even a Canadian Birth Certificate posted on the Internet in the name of Barack Hussein Obama, Jr.; however, the date of birth shows to be August 23, 1961
5.13. At the time of Obama’s birth in 1961, Kenya was a British Colony. Subsequently, under the Independence Constitution of Kenya, Mr. Barack H. Obama became a Kenyan citizen on December 12, 1963. There are no indications or reports that Mr. Obama ever renounced that dual citizenship conferred either by nature of birth or by virtue of his father’s Kenyan citizenship. On Mr. Obama’s Senate web site, Mr. Obama acknowledges his father holds Kenyan nationality but avoids addressing that that he (Mr. Obama) also held/holds Kenyan nationality.
Testing
FAQ on Obama’s birth
http://sites.google.com/site/obamabirth
Visit.
dragoon “Natural-born citizen means both of your parents were citizens at the time of your birth, so that no foreign allegiance is possible.”
Sorry, no. We have researched this on this site, and this is wrong.
Natural-born means born in the USA.
I may also mean born to US citizen parents beyond the seas, as the First Congress provided in a statute; that question has never been judicially resolved.
But all persons born in the United States are natural born citizens, and eligible for President, regardless of the citizenship of their parents.
Many children of undocument aliens are US citizens by birth.
1. Jus Soli: (of the soil). If you are born on U.S. soil, you are a “citizen”.
2. Jus Sanguinis: (of the blood). You derive your citizenship from your father – you are a “citizen” of his country.
A “natural born” citizen possesses BOTH Jus Soli AND Jus Sanguinis …
http://federalistblog.us/2008/11/natural-born_citizen_defined.html (link explains natural born citizen)
Prof. Turley,
Thank you for a very well-written and (for the most part) factual article. I have to say, your article is the most-balanced article I have read so far on this issue. Kudos!
I trust that you will share this same information to the nation tonight when you are on MSNBC. I will try to catch your comments.
Rep. Bingham commenting on Section 1992 said it means “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.”
This national law does not endow upon any person allegiance through birth alone as was the custom under the old English common law practice but only recognizes citizenship of those born of parents who owe no allegiance to another nation. In other words, national law prevented the creation of conflicting dual citizenships between other nation’s citizens.
Essentially then, “subject to the jurisdiction thereof” means the same jurisdiction the United States exercises over its own citizens, i.e., only citizens of the United States come within its operation since citizens of the United States do not owe allegiance to some other nation at the same time they do the United States. This makes a great deal of sense for the time because there was a great deal of controversy over conflicts arising from double allegiances. In fact, Congress issued a joint congressional report on June 22, 1874 that said the “United States have not recognized a double allegiance.”
Fourteenth Amendment framer, Rep. John A. Bingham, argued before the House in 1871 that Dr. John Emilio Houard was a natural-born citizen of the United States. According to Bingham he was a natural-born citizen because he was “born of naturalized parents within the jurisdiction of the United States” by the “express words of the Constitution, as amended today.” A naturalized male (women became naturalized through their husbands) were required to “absolutely and entirely renounce and abjure all allegiance and fidelity” to other nations, and thus, could no longer be said to owe allegiance to anyone but the United States.
Because “subject to the jurisdiction thereof” requires not owing allegiance to any other nation, and because the nation does not recognize double allegiances that can be created at common law, narrows the possibilities to what “natural-born citizen” can mean.
http://federalistblog.us/2008/11/natural-born_citizen_defined.html
“Clinton did in fact vote to increase the salary of the Secretary of State and it was signed into law in January.”
I don’t think that’s correct. See Laurence Tribe on the subject:
“I am, finally, influenced by the fact that the salary increase at issue here was created not by any enactment for which Senator Clinton voted or on which she had any opportunity to vote. Rather, that increase was created by a statute enacted well before Hillary Clinton was elected to the Senate. My understanding is that the 1990s cost-of-living statute in question, 5 U.S.C. Sec. 5303, automatically increases the salaries for a number of federal offices, including that of Secretary of State, provided the President does not certify that the increase would be inappropriate.”
http://balkin.blogspot.com/2008/12/is-hillary-clinton-unconstitutional.html
Getting back to the legal issues.
JT: “Democrats may try to pull a Saxbe. Not Saxby Chambliss , Ohio Sen. William Saxbe when he was nominated to be President Nixon’s attorney general in 1974. … However, Clinton may rely on the standing issue — arguing that no one has authority to force review of her eligibility. She will likely be successful, but once again the use of standing to avoid a court review is inimical, in my view, to the protection of constitutional values.”
This is interesting. Working for Congress back in 1973-74, I recall the Saxbe fix. I recall that Sam Ervin inserted a clause in the bill which reduced Saxbe’s salary providing federal court jurisdiction for a review of the constitutinal issues.
I do not think that any cases ever were filed. Even though Congress can grant subject matter jurisdication over a federal question like this, I do not think they can grant standing, since that is a judicial doctrine requiring that the parties have a stake in the issue. The federal courts cannot issue pure advisory opinions because their jurisdiction is limited under the cases and controversies clause.
A similar clause could be slipped into the Clinton fix, but it seemed much easier to imagine someone, like a criminal defendant, getting standing to challenge the AG.
If anyone can find the statutes at large from 1973 or 73 online, look this up. Otherwise, a trip to the law library for the lawyers (or law clerks, or law students).
Article 2, Section 1, Clause 5 of the Constitution of the United States:
“No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution shall be eligible to the Office of President;
neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.”
I strongly feel that Mr. Obama and his supporters have not abided by the explicit provisions of the Constitution.
For this reason, I am demanding that the truth about Mr. Obama’s eligibility to be the president of this great nation be conclusively established so that we can function as one nation and without the nagging question about Obama’s eligibility that deeply troubles me and millions of my fellow Americans.
@dragoon
There is no common law in the US. There’s the Constitution, and there are statutes. But that doesn’t change anything about Donofrio’s arguments, as far as I know.
@MASkeptic:
Do you realize what you’re saying? You’re saying that the Constitution is a prostitute, open to whatever interpretation one likes. But this is a totally different issue: It’s about the most important political office in the world. It’s about a decision between political preferences and the actual words of the law, it’s about deciding between the popularity of a candidate and the Constitution. You see, I have nothing against changing laws or amending the Constitution. Historical contexts change, so laws have to change to. But I have something against bending the Constitution at will to serve indidivual or political realities, because legislature suddenly finds out it has been sleeping the past decades. At this moment, the Constitution (in all probability) does not render Obama eligible for Presidency. How in God’s name do you want to bend that? How murch further do you want to go? Do you really want a president with illegitimate power? But———let’s wait what the SCOTUS does.
DCDC has this since 11-26-08:
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
——————————–x Case No.:
:
CHRISTOPHER EARL STRUNK : VERIFIED COMPLAINT
: AND PETITION FOR
Petitioner, : WRIT OF MANDAMUS
v. : UNDER F.O.I.A.
:
U.S. DEPARTMENT OF STATE :
:
Defendant. :
:
——————————–x
NOW COMES Christopher Earl Strunk, as the Petitioner, and brings this Complaint pursuant to the Freedom of Information Act, 5 U.S.C. §552, et sequitur, against the Defendant the United States Department of State, stating:
JURISDICTION AND VENUE
1. This cause of action arises under the Freedom of Information Act pursuant to 5 U.S.C. §552. Jurisdiction is properly before this Court pursuant to that federal statute with the United States District Courts under 28 USC §1331 with a Federal question and under 28 USC §1346.
2. This particular District Court for the District of Columbia affords the proper venue under 28 USC §1391 (e) (2) for this action in that the Defendant U.S. Department of State is located within the District of Columbia and the failure of the Defendant to act was also within the District of Columbia.
3. Petitioner filed this complaint requesting this Court to Order the U.S. Department of State to fulfill their obligations pursuant to the Freedom of Information Act (hereinafter “FOIA”) immediately turn over the following documents on the following individual:
a. Stanley Ann Dunham, a/k/a Ann Dunham a/k/a Stanley Ann Obama a/k/a Ann Obama a/k/a Stanley Ann Soetoro a/k/a Ann Soetoro a/k/a Stanley Ann Sutoro a/k/a Ann Sutoro a/k/a Stanley Ann Dunham Obama a/k/a Ann Dunham Obama, born November 29, 1942 at Wichita KS. U.S., a.k.a. Stanley Ann Dunham Obama and who died on November 7, 1995 under the name Stanley Ann Dunham Soetoro (a.k.a. Sutoro), SSN: xxx-xx-8522; and
b. Barack Hussein Obama, Jr. a/k/a Barry Soetoro Date of Birth: August 4, 1961 and as a living natural person; and
4. The following documents:
a. Any and all U.S. Applications for a U.S. Passport;
b. Entry and Exit Passport Records pertaining to the United States and Kenya from the period of time of January 01, 1960 to December 31, 1975 and January 1, 1979 to December 31, 1985;
c. Entry and Exit Passport Records pertaining to the United States and Indonesia from the period of time of January 01, 1960 to December 31, 1973 and January 1, 1979 to December 31, 1985;
d. The above travel records on for the dates specified travelling on a U.S. Passport, Kenyan Passport, Indonesian Passport or any other foreign passport and/or visa;
e. Foreign Birth Certificate registered and filed with the U.S. Embassy, Kenya and/or U.S. Embassy of Indonesia for Barack H. Obama a/k/a Barry Soetoro, Date of Birth: August 4, 1961;
f. Foreign Birth Registry filed with the U.S. Embassy, Kenya and/or U.S. Embassy of Indonesia by Stanley Ann Dunham, et al. Registering the birth of Barack H. Obama a/k/a Barry Soetoro, Date of Birth: August 4, 1961; and
g. Adoption Records and/or Governmental “Acknowledgment” wherein Barack H. Obama a/k/a Barry Soetoro was “acknowledged” as Lolo Soetoro, M.A.’s son.
5. Pursuant to the Freedom of Information Act, the Petitioner, Christopher Earl Strunk, petitions this Court for extraordinary relief in the nature of a writ of mandamus under 28 USC §1651, directed to Respondent, United States Department of State, and its employees and agents in the United States Department of State;
6. This action seeks to compel the U.S. Department of State to turn over the records requested pursuant to a Freedom of Information Act referred to herein.
7. In support of this verified petition, Petitioner avers the following:
THE PARTIES
8. Petitioner, Christopher Earl Strunk (hereinafter “Petitioner”), is an individual who resides with place for service at 593 Vanderbilt Avenue #281 Brooklyn, NY 11238; Email: uncasvotes2@yahoo.com, Cell-845-901-6767.
9. Defendant, United States Department of State, is a Governmental Agency located at 2201 C Street N.W., Washington, D.C. 20520.
FACTS
10. On October 17, 2008, Petitioner filed a FOIA request directed to the United States Department of State request for the above cited records for the person referenced at paragraph 3 (a) for the period from 1960 through 1963, and Petitioner sent the request via United States Postal Service, Certified Mail, Return Receipt Requested; a true and correct copy of Petitioner’s letter is attached hereto and incorporated in by reference as Exhibit A.
11. Petitioner filed the FOIA request for travel records shown as Exhibit A that was deposited with the USPS certified with return receipt request for two-day delivery by October 20, 2008, as per the true and correct copy of the USPS mailing purchase receipt attached herewith marked Exhibit B.
12. That on October 27, 2008, the USPS confirmed delivery of the FOIA request for records under the control of the United States Department of State, (see Exhibit C).
13. That on October 30, 2008, Defendants agent signed the return receipt for the FOIA request shown as Exhibit A for Petitioner’s FOIA request at the U.S. Department of State; that thereafter, was delivered to my mailing address by the USPS, (see Exhibit D).
14. On or about November 7, 2008 Petitioner never received any response from Defendant / Respondent for any of the information requested in regards to above paragraph 3(a).
15. On November 22, 2008, Petitioner filed the FOIA request with reference number B8475 the information detailed above in regards to above living natural person described in paragraph 3(b); see the US Depart. of State request confirmation marked Exhibit E.
16. On November 22, 2008, Petitioner filed a declaration in support of the FOIA request with reference number B8475 the information detailed above in regards to above living natural person described in paragraph 3(b), with a cover letter and attachment of the FOIA request on the deceased person described in paragraph 3(a) see Exhibit F.
17. A true and correct copy of the return receipt is attached hereto and incorporated see Exhibit G.
18. The above records do not fall within any of FOIA exemptions items.
19. The above documents do not involve any of the FOIA exemptions which include National defense or foreign policy records, 5 U.S.C. § 552(b)(1), internal personnel rules and practices of an agency, 5 U.S.C. §552(b)(2); exemption by other federal statutes, 5 U.S.C. § 552(b)(3); trade secrets, commercial or financial information, 5 U.S.C. § 552(b)(4); inter-agency or intra-agency memoranda 5 U.S.C. § 552(b)(5); personnel and medical files, 5 U.S.C. §552(b)(6); information complied for law enforcement purposes, 5 U.S.C. §552 (b)(7); information contained in or related to examination, operating or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions. 5 U.S.C. §552(b)(8); nor does the information requested involve geological and geophysical information, 5 U.S.C. §552(b)(9).
20. The above requested documents are extremely critical and important to Petitioner as well as the general public and are of substantial public interest.
21. The overwhelming majority of the Electoral College slates of the States of the several States received the majority advisory votes cast for Barack Hussein (“H.”) Obama a/k/a Barry Soetoro [hereinafter “Obama”] and thereby won the general election votes on November 4, 2008; and subsequent to canvassing in each State of the several States the Electoral College of each state of the several states is to be certified by the state officials over every state on or about December 1, 2008 is to assembly in each State of the several States to cast their votes on December 15, 2008.
22. Mr. Obama is not a U.S. “natural born” citizen and ineligible to serve as the United States President, pursuant to the United States Constitution, Article II, Section 1, Clause 5.
23. Although Mr. Obama claims to have been born in two (2) separate hospitals in Hawaii, he was actually born in Mombasa, Kenya to his mother a U.S. citizen and his father a Kenyan National.
24. Mr. Obama’s mother (referenced above in paragraph 3(a)) was not old enough pursuant to the Nationality Act of 1940, revised June 1952 to pass on U.S. “natural born” citizenship to Mr. Obama.
25. The U.S. Law in effect during Mr. Obama’s birth stated if you are born abroad to one U.S. parent and a foreign national, the U.S. parent must have resided in the United States for ten (10) years, five (5) of which were after the age of Fourteen (14) in order to register the child’s birth abroad in the United States as a “natural born” U.S. citizen, under the Nationality Act of 1940, revised June 1952, United States of America v. Cervantes-Nava, 281 F.3d 501 (2002), Drozd v. I.N.S., 155 F.3d 81, 85-88 (2d Cir.1998), United States v. Gomez-Orozco, 188 F.3d 422, 426-27 (7th Cir. 1999), Scales v. Immigration and Naturalization Service 232 F.3d 1159 (9th Cir. 2000), Solis-Espinoza v. Gonzales 401 F.3d 1090 (9th Cir. 2005).
26. Under the Nationality Act of 1940, revised June 1952, is the law that applies to a birth abroad and is in effect at the time of birth, Marquez-Marquez a/k/a Moreno v. Gonzales 455 F. 3d 548 (5th Cir. 2006), Runnett v. Shultz, 901 F.2d 782, 783 (9th Cir.1990) (holding that “the applicable law for transmitting citizenship to a child born abroad when one parent is a U.S. citizen is the statute that was in effect at the time of the child’s birth”).
27. Stanley Ann Dunham, Senator Obama’s mother, was only 18 when she had Obama. She was not old enough to register Obama’s birth in Hawaii or anywhere else as a United States “natural born” citizen as she did not meet the residency requirements pursuant to our United States Laws; as such it does not matter that this is a minor technicality, the law is applied regardless – see United States of America v. Cervantes-Nava, 281 F.3d 501 (2002), Drozd v. I.N.S., 155 F.3d 81, 85-88 (2d Cir.1998).
28. Mr. Obama has been asked for his “vault” version birth certificate; however, he has refused, which has prompted law suits across the United States.
29. Instead, Mr. Obama and or his agent(s) placed an image of a Hawaiian Certification of Live Birth (COLB), which is issued for all birth’s registered in the State of Hawaii; the COLB, does not prove “natural born” citizenship or birth in Hawaii.
30. A COLB is sufficient proof of citizenship; however, it does not prove “natural born” citizenship, a COLB is issued to those who are simply “naturalized”.
31. There is absolutely NO doubt in Petitioner’s mind that Mr. Obama’s birth in Kenya was registered in Hawaii, at which time, yes they would have issued a COLB; however, Obama’s birth could have ONLY been registered as “naturalized” as his mother did not meet the citizenship requirements to register Obama’s birth as “natural born”, Nationality Act of 1940, revised June 1952, United States of America v. Cervantes-Nava , 281 F.3d 501 (2002), Drozd v. I.N.S., 155 F.3d 81, 85-88 (2d Cir.1998), United States v. Gomez-Orozco, 188 F.3d 422, 426-27 (7th Cir. 1999), Scales v. Immigration and Naturalization Service 232 F.3d 1159 (9th Cir. 2000), Solis-Espinoza v. Gonzales 401 F.3d 1090 (9th Cir. 2005), and as such the law that applies to a birth abroad is the law in effect at the time of birth, Marquez-Marquez a/k/a Moreno v. Gonzales 455 F. 3d 548 (5th Cir. 2006), Runnett v. Shultz, 901 F.2d 782, 783 (9th Cir.1990) (holding that “the applicable law for transmitting citizenship to a child born abroad when one parent is a U.S. citizen is the statute that was in effect at the time of the child’s birth”).
32. Mr. Obama’s citizenship status is further complicated by the fact he was enrolled by Lolo Soetoro in a public school, Fransiskus Assisi School in Jakarta, Indonesia; the records received as copies of the school registration, in which it clearly states Mr. Obama’s name as “Barry Soetoro” and lists his citizenship as Indonesian (see Exhibit Addendum).
33. Mr. Obama’s father is listed as Lolo Soetoro, and Mr. Obama’s Religion is listed as Islam.
34. At the time Mr. Obama was registered the public schools obtained and verified the citizenship status and name of the student through the Indonesian Government; and that Indonesia at this time was a police state and foreign students were not allowed to attend public schools.
35. The Indonesian school, upon registration of a new student, verified the citizenship status and name of the child with the Indonesian Government; moreover, Indonesian Immigration and police checked all public schools on a weekly basis to ensure the only students attending were in fact Indonesian citizens.
36. Due to Mr. Obama’s birth abroad, he could only be “naturalized”, second, he became a “natural” citizen of Indonesia; even if Obama’s adoption and/or acknowledgment allowed him to choose his citizenship status, there is more involved.
37. Indonesia, still to this day, does not permit dual citizenship, and the law in Indonesia states if a minor who lost citizenship in another country may reclaim that citizenship; however, prior to age 21, they must swear a declaration signed and served and filed with Indonesia their desire to relinquish their citizenship status.
38. Furthermore if this is not done by age 21, they lose that right; and as stated in the Indonesian laws, “at the age of 18, the child can choose whether to stay an Indonesian citizen or follow their foreign father’s citizenship. They will be then given additional three more years to decide on which nationality to choose.”, e.g. 18 + 3 = 21.
39. The problem here is the citizenship of Mr. Obama’s father “Soetoro” is Indonesian; Indonesia did not recognize dual citizenship.
40. The Indonesian citizenship law was designed to prevent apatride (stateless) or bipatride (dual citizenship); Indonesian regulations recognize neither apatride nor bipatride citizenship.
41. The Hague Convention prevented the U.S. from interfering with Indonesia’s laws.
42. Indonesia did not recognize dual citizenship, thus, neither did the U.S.; and an adoption per se severs all relationship to the birth place and/or citizenship of a birth parent.
43. Once Indonesian “natural” citizenship status occurred, it stayed; and in order, according to Indonesia, which is whose law prevails, Mr. Obama would have been required to relinquish in writing under oath his Indonesian citizenship and file the declaration with Indonesia government.
44. Indonesian citizenship does not expire without a person, in declaration, swears under the penalty of perjury, to relinquish Indonesian Citizenship and files said document with the government no later then age 21, as under the Indonesian Constitution, Art. 2.
45. If Mr. Obama wanted to fully regain any U.S. Citizenship status he may have had, he would have had to undue the adoption or go through paternity to prove Soetoro was NOT his father in the case of Soetoro Acknowledging Mr. Obama as his son, both of which gave Mr. Obama “natural” Indonesian status, which is the same as U.S. “natural born” citizenship status.
46. Under Indonesian law, when a male acknowledges a child as his son, it deems the son—in this case Obama—to be an Indonesian State citizen; the Constitution of Republic of Indonesia, Law No. 62 of 1958 Law No. 12 of 2006 dated 1 Aug. 2006 concerning Citizenship of Republic of Indonesia, and Law No. 9 of 1992 dated 31 Mar. 1992 concerning Immigration Affairs and Indonesian Civil Code (Kitab Undang-undang Hukum Perdata) (KUHPer) (Burgerlijk Wetboek voor Indonesie).
47. Further, the Indonesia Constitution, Article 2 states “It is stipulated that an adopted child has the same status as a natural child and that his or her relationship to the birth parents is severed by adoption”.
48. Further, the Indonesia Constitution, Article 2 states: “on the condition of ratification of the adoption by the District Court: ‘The law stipulates that children of mixed couples automatically assume their father’s citizenship, and a divorced wife cannot take custody of her children because they have different citizenship’….”.
49. Furthermore, Indonesia did not allow Dual Citizenship or Dual Nationality thus Mr. Obama is not a U.S. Citizen, he is Indonesian; neither Mr. Obama’s place of birth or the nationality of his American parent are relevant, the Indonesian Law takes precedence under The Master Nationality Rule of Article 4 of the Hague Convention of 1930.
50. The United States accepts the existence of Dual Nationality only if the other country does; however, Hague Conventions are applied by the United States and this has been in effect since before 1930 (Memorandum on Nationality, including Statelessness: Document A/CN.4/67, Prepared by Ivan S Kerno, International Law Commission, United Nations General Assembly, 6th April 1953.); thus, Mr. Obama is not a “natural born” citizen and my not even be a naturalized citizen.
ARGUMENT IN SUPPORT OF RELIEF
51. Petitioner / Plaintiff has standing to sue under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq. (1994); and anyone denied information under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq. (1994) has standing to sue regardless of his or her reasons. Akins vs.FEC, 322 US. App. D.C. 58; 101 F.3d 731; 1996 U.S. App. LEXIS 31253 (1996), 524 U.S. 11 (1998); Public Citizen vs. FTC, 276 U.S. App. D.C. 222, 869 F.2d 1541(D.C. Cir. 1989).
52. Petitioner / Plaintiff has suffered an informational injury as a voter and member of the public; and the lack of information on Mr. Obama’s citizenship, caused by the State Departments action, limited the information available to him as a voter and impaired his ability to influence and inform the public and policymakers.
53. If a party is denied information that will help it in making a voting decision that party is obviously injured in fact; and as stated in Akins, the court noted that:
“[a] voter deprived of useful information at the time he or she votes suffers a particularized injury in some respects unique to him or herself just as a government contractor, allegedly wrongfully deprived of information to be made available at the time bids are due, would suffer a particularized injury even if all other bidders also suffered an injury.”
54. Even if all individuals who voted for any of the other Democratic candidates for President, suffered the same injury that does not take away from the individual injury that Petitioner / Plaintiff suffered.
55. Even assuming a request under FOIA triggered legitimate Privacy Act concerns, the U.S. Department of State was required to provide Petitioner with reasonably segregable portions of that correspondence, 5 U.S.C. §552(b); Department of State v. Ray, 502 U.S. 164 (1991) (disclosure of personal information without identifying details), Baltimore Sun v. Marshals Service, 131 F. Supp. 2d 725, 729 (D. Md. 2001) (identity of purchasers of seized government property disclosed).
56. There are no per se rules of nondisclosure, see Stern v. FBI, 737 F.2d 84, 91 (D.C. Cir. 1984); and FOIA Exemption 6 does not justify the withholding of information regarding individuals particularly where the privacy interest is minimal and the public interest in disclosure is strong, and the balance of interests under Exemption 6 “instructs the court to tilt the balance in favor of disclosure.” Getman v. NLRB, 450 F.2d 670, 674 (D.C. Cir. 1971).
57. These issues can be easily resolved; the documents requested will either prove that Obama is in fact a “natural born” U.S. Citizen or they will prove he is not, at which point he will have to be removed as the Presidential candidate and requires a restraint upon the Electoral College vote cast and certified on or after December 15, 2008.
58. For the above aforementioned reasons, the above requested documents are of great public interest and without receiving said documents; our Country is at risk of allowing an illegal candidate to serve as President of the United States which constitutes a huge National Security dilemma.
59. The court determines whether disclosure is warranted by “balanc[ing] the public interest in disclosure against the [privacy] interest Congress intended the Exemption to protect.” Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 776 (1989). The public interest in disclosure lies in “open[ing] agency action to the light of public scrutiny,” Reporters Comm., 489 U.S. at 772.
60. Under FOIA, 5 U.S.C. § 552, Attorney Fees and Costs are appropriate pursuant to § 552 (a)(4)(E).
CONCLUSION
For the above aforementioned reasons, this Court should Mandate and Order the U.S. Department of State to immediately turn over the documents referred to above.
Respectfully submitted,
Dated: November 22, 2008
Brooklyn, New York /s/ Christopher Earl Strunk
___________________________
Christopher Earl Strunk
Attached Exhibits A through G and Addendum
cc:
Office of Information Programs and Services
A/ISS/IPS/RL
U. S. Department of State
Washington, D. C. 20522-8100
Gyges,
The answer from anon was probably this:
Natural-born citizen means both of your parents were citizens at the time of your birth, so that no foreign allegiance is possible.
“Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American Army shall not be given to nor devolve on, any but a natural born Citizen.”
John Jay, first Cheif Justice of the Supreme Court, in a letter to George Washington, July 1787
The definition of Natural-born comes to us from English common law and is hundreds of years old. Its meaning is not debatable, and was understood by the framers of the 14th amendment. Natural born means that no statute made you a citizen.
Obama can never be Natural-born.
There have been so many “proxy” arguments over the past 2 years to hide the fact that a lot of people just can’t handle the idea of a black president. If one calls him a “Muslim” (because, after all, there’s a religeous test to be president), or a terrorist sympathizer, or a communist, etc. etc. , then one can avoid what they’re really thinking,”Oh shit, a nigger in the Whitehouse. They’ll be coming for our women next!!!!!”.
No one’s been hidding anything about his birth. Obama’s background has been subject to more examination than any candidate in history.
No disclosure of his birth certificate? Go check out http://fightthesmears.com/articles/5/birthcertificate
Does Obama have to personally drive every crazy asshole down to the county clerks office in Honolulu and read the fucking thing to them????? I suppose the local offcials and his grandmother have had something to do with the conspiracy too, huh?
Face it, there are some people, with brown skin, who managed (some how)to get into ivy leauge schools and are smarter and more ambitious than your average pecker-wood racist asshole. Just because someone has a weird name doesn’t mean they necesarily hate this country. There are some guys, Newt, Mit, Saxby, who do seem like real assholes, but they still love there country, albeit in a hypocritical fucked-up elitist way.
Ah, the fate of a country hinging on a nuanced interpretation of 200+ year old phrasing in a document whose full meaning has already been warped for political ends by both of the parties of these United States.
Arguments like this are what get me out of bed in the morningfnord.
INTO THE HOPPER:
Christopher Earl Strunk
593 Vanderbilt Avenue – #281
Brooklyn, New York 11238
December 3, 2008
The Court Clerk’s Office
Supreme Court of the United States
1 First Street, N. E.
Washington, DC 20543
Subject: In Re Christopher Earl Strunk SCOTUS Rule 22 Petition for Writ of Mandamus on appeal from the Second Circuit 08-5422-OP
Dear Clerk of the Court,
I am Christopher Earl Strunk petitioner, pro se without being an attorney. I hereby apply under SCOTUS Rule 22 for an Extraordinary Writ of Mandamus that at the Justice’s discretion would apply under 28 USC §1651 for Temporary Restraining Order Injunctive Relief of the New York Electoral College pending issuance of an order by the U.S. District Court for the District of Columbia or court of competent jurisdiction of all the records demanded of the U.S. Department of State under the Verified Complaint and Petition for Writ of Mandamus under F.O.I.A. in exhibit herein; and herewith attach the following:
•The Letter to the Honorable Ruth Bader Ginsberg
•One Original and two copies of the PETITION FOR WRIT OF MANDAMUS affirmed December 3, 2008 with annexed Exhibits R22 -A-417 thru R22 -A-521 and
•Three copies of the APPENDIX with annexed Pages R22 -A-001 thru R22 -A-416
•The Certificate of Service
In addition I have chosen the Honorable Clarence Thomas as the alternate Associate Justice to receive the following:
•A copy of the Letter to the Honorable Ruth Bader Ginsberg
•Three copies of the PETITION FOR WRIT OF MANDAMUS affirmed December 3, 2008 with annexed Exhibits R22 -A-417 thru R22 -A-521
•A copy of the Certificate of Service
This is related to the election of the President, and therefore as it involves imminent irreparable harm as time is of the essence because it is related to the election of the president by the Electoral College that was to be certified December 1, 2008 and assembled to cast a vote on December 15, 2008.
Thank you in advance for your attention to this matter and if you require more information please don’t hesitate to contact me at (845) 901-6767.
Sincerely yours, /s/
_________________________
Christopher Earl Strunk
Attachments
=================================================================
Christopher Earl Strunk
593 Vanderbilt Avenue – #281
Brooklyn, New York 11238
December 3, 2008
The Honorable Ruth Bader Ginsberg
Associate Justice of the S.C.O.T.U.S.
1 First Street, N. E.
Washington, DC 20543
Subject: In Re Christopher Earl Strunk SCOTUS Rule 22 Petition for Writ of Mandamus on appeal from the Second Circuit 08-5422-OP
The Honorable Ruth Bader Ginsberg,
I am Christopher Earl Strunk petitioner, pro se without being an attorney. I hereby apply under SCOTUS Rule 22 to your Honor assigned to oversee the United States Court of Appeals for the Second Circuit for an Extraordinary Writ of Mandamus that at the Justice’s discretion would apply under 28 USC §1651 for Temporary Restraining Order Injunctive Relief of the New York Electoral College pending issuance of an order by the U.S. District Court for the District of Columbia or court of competent jurisdiction of all the records demanded of the U.S. Department of State under the Verified Complaint and Petition for Writ of Mandamus under F.O.I.A. in exhibit herein; and
That petitioner also requests an expedited emergency Appeal taken from 2nd Circuit Judge Robert A. Katzmann’s DENIAL of the Emergency Motion for a Circuit Panel to rehear THE PETITION FOR WRIT OF MANDAMUS in the Original Proceeding in Second Circuit case 08-5422-OP as a matter of substantive due process involving fundamental rights, with request for remand to in EDNY 08-CV-4289 with October 28, 2008 Civil Judgment from the Memorandum and Order of District Judge Allyne R. Ross.
This is related to the election of the President, and therefore as it involves imminent irreparable harm as time is of the essence because it is related to the election of the president by the Electoral College that was to be certified December 1, 2008 and assembled to cast a vote on December 15, 2008.
According to the Public Record, Circuit Judge Katzmann was the attorney and political scientist acting on behalf of the Honorable Senator Patrick Moynihan on the committee to have your Honor appointed to the Supreme Court by then President Clinton. Due to the appearance of favoritism to the decision of Judge Katzmann who himself was rewarded for his efforts to have you appointed by the Senate to the Second Circuit before President Clinton finished his term, as such I would request that the Honorable Justice recuse herself under 28 USC §455 and defer to the Honorable Clarence Thomas as the alternate Justice to review this matter.
Thank you in advance for your attention to this matter and for your continued valuable service to our nation.
Respectfully yours, /s/ Christopher Earl Strunk
_________________________
Christopher Earl Strunk
A lot of posts don’t show up here.
anon, Just what is it with your name calling and what is your problem with my post? I said nothing about or to you.
This just reflects badly back on you.
To the first poster (“Anon”):
What you state is a fair representation of Donofrio’s case: Donofrio assumes (like most other people and the media) that Obama is a citizen by birth on US soil. His case however is about the issue of “natural born citizenship”. He doesn’t care about the fringe lawsuits on the birth certificate.
One thing you write, Anon, is however wrong: “just as if a married couple at the Russian embassy in D.C. (Russian citizens) had a child at a D.C. area hospital”
This depends on the status of the parents. If the parents have diplomat status, the child is not a US citizen, even if it’s born on US soil. If they are simply foreigners, the child will be a citizen of the US by statute, according to 8 US Code §1401a.
Barack Obama is definitely a “born citizen” according to 8 USC §1401a. The SCOTUS however has to decide whether Obama is also a “natural born citizen”, as well as a “born citizen” according to the 14th Amendment to the Constitution, which would include that Obama was at birth a “subject to the jurisdiction” of the US. The latter is unlikely, because the author of the 14th Amendment gave a comment to said Amendment and stated that “subject to the jurisdiction” meant sole allegiance to the United States. Since Barack Obama had dual allegiance and was under US and UK jurisdiction at birth, he would not be a “born citizen” according to the 14th Amendment. Therefore he would not be a “born citizen” under the Constitution, only by statute, and could then also not be regarded as a “natural born citizen”.
I have tried posting a link/response to your ignorant statement above three times.
The link is to actual statements made by the person who drafted the Fourteenth Amendment.
Turley is blocking the link from being posted.