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.
@Free America
You have to realize that this is the Washington game. They need their own “political reality”. They don’t care about “constitutional reality”, about “historical reality”, about the fundaments of the union. They don’t care about what’s written in the law. They will bend it at will, as MASkeptic has written above. They have tried to bend it in favor of McCain with Tribe/Olson and S.Res.511, although the facts of the law are against them. And they will also bend it in favor of Obama, if they can. It will be interesting to see what kind of role the SCOTUS will play. In any case, the fact that Turley went on the air and tried himself to create a “political reality”, including speculations—while refraining from discussing the topic thoroughly, based on facts alone—, is a disgrace for a man, who is supposed to be a scientist.
To all you anonymous posters: I am also anon the twin. I pushed the wrong button by mistake.
“John” wrote “The Framers realized they were excluding themselves from Presidential eligibility, because at the time of the adoption/ratification of the Constitution they were (like Obama) under dual jurisdiction, most of them British-American.”
What in the world are you talking about? The framers excluded from presidential eligibility? They were NOT!
Do the names Washington and Madison ring a bell with you?
The clause said a natural born citizen or “a Citizen, of the United States at the time of the Adoption of this Constitution” could be President.
You continue “because at the time of the adoption/ratification of the Constitution they were (like Obama) under dual jurisdiction, most of them British-American. Their motivation was to minimize foreign influence on the administration, which is clear from the Convention proceedings and John Jay’s letter.”
So they preserved their eligibility even though most of them were British American under dual jurisdiction!
That is one of the wrongest arguments I have ever seen.
Jay’s letter showed the rationale. The did not want foreign Napoleons coming over to save the day. No one was concerned about infants.
“there is now prior history of law” should have said “there is no prior history of law”
Well, I just watched the segment on MSNBC. I can’t tell you how disappointed I am to hear what you just said.
And how can you say (paraphrasing) that the COTUS is clear and should be followed on Clinton’s emoluments issue, but at the same time say the COTUS is unclear on the natural born citizen issue.
MSM, and people of your ilk are doing Americans a vast disservice. You are a professor of law (as I understand it) and you should know better than state what you just did on MSNBC. A total disgrace.
Leo has a very strong case that has no precedence – just the type of case that SCOTUS takes on because there is now prior history of law to base an opinion.
I’m tired of fighting the words game, now we are at the point to see what SCOTUS deems to be important.
“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.”
Just watched JT. I would only caution him that it does not seem to matter whether or not Hillary Clinton actually VOTED for the pay raise.
The Clause disqualifies a Member if the pay [emoluments] of the office were increased during the time for which she was elected. It does not distinguish between Members who voted for, against, or abstained.
@Sam:
Maybe you mean the essay by Professor Yinger. It gives a good overview over exactly this subject. It’s a rather liberal interpretation of the term “natural born citizen”, but to my mind it does not collide with Donofrio’s case.
Since posts with URLs are held back, here’s the article’s title. Just google.
The Origins and Interpretation of the Presidential Eligibility Clause in the
U.S. Constitution: Why Did the Founding Fathers Want the President
To Be a “Natural Born Citizen” and What Does this Clause
Mean for Foreign-Born Adoptees?
By John Yinger.
Jonathan,
With regards to the SoS eligibility issue; your blog asserts ‘Clinton did in fact vote to increase the salary of the Secretary of State and it was signed into law in January.’.
The CNN link you provided says that the raise was enacted by an Executive Order, which suggests that it may not have been voted on in the Senate. Am I missing some info here like the EO was used subsequent to a Bill voted on in the Senate? Those two things don’t seem to tally, why is an EO needed if a Bill has passed?
Perhaps in haste you’ve made a mistake here.
@dragoon
You’re right, but I would like to add one thing. It’s not necessary to have two US parents. It’s only necessary to have ONE US citizen parent. The other parent however would have to be a citizen, who by the laws of his country would not transfer jurisdiction on the child.
And that’s the tragedy with Obama: If it had been the other way around——namely: Mrs. Obama and Mr. Dunham——, he would be a natural born citizen. Let’s quote the British Nationality Act:
QUOTE: “Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth.”
FATHER!!!! If Obama had had a British-Kenyan mother and a US father, Obama would not have been born as a subject under dual UK-US jurisdiction. This part of British common law is a patrilineal ius sanguinis. The mother is irrelevant. Oh, what an irony of fate!
When my wife and I adopted children from Russia, I was interested in this same question. I unfortunately lost the link, but I found an argument online that citizens are either “natural born” or “naturalized”. The Supreme Court (I’m told) considers the distinction black or white, no shades of gray, no other cases to consider. Under the Child Citizenship Act of 2000 (H.R. 2883), my children are citizens without naturalization, and therefore must be considered natural born citizens. I don’t know if they’ll ever run for President, but I’ll consider them eligible to do so.
@anon the twin
I did not inject words. The 14th Amendment speaks about subjection to US jurisdiction. And Obama was clearly not born as a subject to US jurisdiction, but as a subject to US AND British jurisdiction.
Tribe and Olson have been thoroughly refuted by Chin. Tribe/Olson is just an opinion paper, 2 pages long, of appallingly dire legal quality. It’s wishful thinking, because the laws rendered McCain a NON-CITIZEN at birth, i.e. a sole citizen of Panama. Any other opinion beside the statutory facts is an aim at rewriting the history and vita of a national hero. Tribe/Olsen and S.Res.511 don’t even care to conceal their intentions. Those Washington punks have been giving a lot of people the runaround.
@Vince Treacy:
“The only constitutional requirement is that the President be a “natural born” Citizen.”
Yes, of course. But you seem to equate “natural born citizen” with “born citizen”, which is not always the case. But a “natural born citizen” needs to be at least a “born citizen”, i.e. birth on US soil is a primary requisite. Sure. By that requisite alone, Obama would be eligible. No need to argue about that. But in the 14th Amendment we also find the remark about being born as a subject to US jurisdiction. Here it fails to accord, because Obama was a subject to US and UK jurisdiction. The jurisdiction-issue is also implicit in the Presidential Qualifications, namely the grandfather clause. The Framers realized they were excluding themselves from Presidential eligibility, because at the time of the adoption/ratification of the Constitution they were (like Obama) under dual jurisdiction, most of them British-American. Their motivation was to minimize foreign influence on the administration, which is clear from the Convention proceedings and John Jay’s letter. The Presidential eligibility clause makes the most sense, when read in this light, which leaves no other interpretation than that of the “natural born citizen” meaning to be free of any foreign allegiance at the time of birth.
Vince treacy,
Researching on websites will get you where you are, which is stuck on wrong. Look up Judah Benjamin’s take on this, for all the historical context you need to understand what the Framers understood. Read Donofrio. Read the Federalist blog. They will all point you to the original sources you need. The internet is good only for tracking down sources, not opinions.
Required: Born on US soil. Two parents with no foreign allegiance. And this has naught to do with anchor babies.
John,
News Flash! Obama is the President-elect. He will be sworn in on Jan. 20th Deal with it.
I took nothing out of context. Obama was born in the US. He was subject to US jurisdiction.
The 14th does not say subject only to US jurisdiction. You are injecting words into it.
Neither Art II nor the 14th say ANYTHING about the parents.
A lot of other countries treat persons born in the US as their citizens, or as eligible to apply for citizenship, because their parents, or even a grandparent, were born abroad, but that IS NOT AN EXERCISE OF JURISDICTION.
Tribe and Olson established McCain’s eligiblilty for President, and their memo is posted on this site.
These frivolous lawsuits are headed for the trashcan.
Oops. It is time to watch JT on Countdown.
Check out Chritopher Strunk. He ran for the NY Senate on an “anti-Jesuit” platform. What is that all about?
Sorry, John.
The only constitutional requirement is that the President be a “natural born” Citizen. The Constitutional Annotated says that all Presidents since and including Martin van Buren were born in the United States. The only issue on qualifications is whether a child born abroad of American parents is natural born. They concluded there is reason to believe that such citizens beconme citizens at birth, but note that the the Supreme Court has not resolved the issue.
I spent a lot of time on websites researching the McCain issue. There is a lot of heat and little light out there.
Anon seems like an antogonist poseur. Donofrio has nothing but respect for the process. He brings a faithful case of first impression to the court. Most of us following his and Wrotnowski’s actions are of the same demeanor and just want the court to give the matter a fair and impartial hearing. Let SCOTUS decide, not the national political party establishments; not the malignant Oligarchy now called the United States Senate.
What I find interesting is the extent to which the framers set forth a restrictive, independent and non-partisan process and accompanying structure for selecting the president of the states. Their fear of Oligarchy is palpable in there efforts to protect and insulate this process.
They were right to be concerned. The national political parties have been trampling the Constitution for years in their nearly unstoppable progression as emerging oligarchies; or, perhaps oligarchies slowly merging.
Implicit in Donofrio’s case of first impression is the return to what has remained unchanged over 200+ years. The Electoral College and presidential election process as set forth by the Framers. Though systematically reduced and all but destroyed by decades of assault on its primacy, it still stands.
Given the law as set forth by the framers, should the political parties be involved as they are now in the selection of the president of the states?
That is an implicit question inherent in Donofrio and Wrotnowski.
@Vince Treacy:
Wrong. There are “born citizens” who are not “natural born citizens”. McCain is a “born citizen” according to statute alone (8 USC §1403), and only retroactively, because at the time of his birth the statute was not yet in effect, and the Insular Cases overruled the Naturalization Act with regard to the Panama Canal Zone.
Furthermore you take the citizen-clause in the 14th Amendment out of context and ignore the fact that it ALSO says “subject to the jurisdiction thereof”, i.e. of the US. Obama clearly was a subject to more than just US jurisdiction, namely dual UK-US jurisdicition. Therefore his status AT BIRTH doesn’t accord with the 14th Amendment “born citizen” status. And that’s a fact, plain and simple.
Polly: The 14th Amendment says that all persons born or naturalized in the United States are citizens of the United State. Persons born in the US are natural born citizens. Persons who are naturalized are not.
The qualifications for President are in Art. II cl. 5. No person except a natural born citizen shall be eligible to the Office of President.
None of these provision require anything but birth.
That is the law.
The statements from the 1860s and 1870s cannot affect the meaning of the original Consitution.
@Vince Treacy:
Whatever you find on this site are just interpretations. And there are many other interpretations out there, and as far as I know the majority opinion of law experts and justices is that you need to be born on US territory AND have American parents. Anything else is de facto only a “native born citizen”, a born citizen by statute, not a “born citizen” under the Constitution, let alone a “natural born citizen”.
I suggest that you go to other sites, like e.g. the federalist blog, or read Yinger’s essay, Chin’s analysis of McCain’s status and other sources, to get all aspects of the issue. I suggest you also read Chertoff’s and Leahy’s statements in the proceedings of Resolution 511, who re-stated the COMMUNIS OPINIO that a “natural born citizen” is a citizen born to American parents.
You also write: “It 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.”
No, it has not “never been judicially resolved”, it has been abolished, nullified by a redrafting of the Naturalization Act of 1795, five years after the initial version (1790), by explicitly removing the term “natural born citizen” and substituting it with “citizen”. There is no second opinion about this. The authors clearly wanted to ensure that foreign-born citizens are not eligible for President.
A question for Professor Turley on an otherwise very good article:
You write that “the odds are strongly against the Supreme Court taking up the case from New Jersey questioning Obama’s eligibility.”
Do you know any evidence, any inside comments from the SCOTUS or other sources, which would suggest that the SCOTUS will not take up the case? If not, don’t you think it would be wise NOT to mention this on live television? Do you think—if there are feasible reasons to assume that Barack Obama is not eligible—that the SCOTUS should not take up the case? If so, why should they drop the case, if there are reasonable doubts? Put differently: If you write that the odds are “strongly against” Donofrio, do you have any interpretation and/or review of his case to offer to us that unequivocally means that Obama actually IS eligible? If not, don’t you think it would be wise NOT to mention on live TV that “the odds are strongly against” Donofrio’s case? Don’t you think it would be wiser to simply discuss the arguments than speculate?