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.
I understand the confusion Vince. I was responding to AY’s comment about only people born in the original colonies could be president. -I probably should have made my point clearer…
I’m not sure if a child born in the U.S. to foreign parents would be considered a natural-born citizen. (I haven’t researched it)
I based this on your statement:
jim byrne 1, June 22, 2009 at 9:24 pm
“Anyone born in the U.S. top [sic] U.S. citizens is eligible to hold the office of President.”
http://jonathanturley.org/2009/06/17/obama-adopts-cheney-policy-and-opposes-release-of-white-house-logs/
“And the birth certificate is irrelevant, since the birthers insist against all law and precedent that a natural born citizen have two US citizen parents, so Obama can never be natural born.”
Thank Goodness. I thought I was a birther. Fortunately, I don’t think a natural-born citizen is required to have two U.S. Citizens as parents.
Vince Treacy
1, July 16, 2009 at 7:18 pm
“President Obama has spent over a million dollars to hide the vault copy of his birth certificate.”
That is a persistent birther rumor, but no proof has been offered. Some people believe this implicitly, yet doubt Obama’s birth certificate.
And the birth certificate is irrelevant, since the birthers insist against all law and precedent that a natural born citizen have two US citizen parents, so Obama can never be natural born. This particular discussion has exhausted almost all aspects of the topic, and the Cook case is moot and over.
Mike S., about the hijacking, it happened before at “Obama adopts Cheney” and at another thread that I have forgotten. I just tried to respond to birthere posters who chose the thread. Note that I redirected a health policy post away from here to the new health bill topic.
If we all agree, we can continue all these born discussions at the most recent natural born citizen thread, and direct any birther posters to our replies there, or to any other thread mutually agreed upon:
Transferred
God dag! Kan jag ladda ner en bild fran din blogg. Av sak med hanvisning till din webbplats!
The comments posted by “John” in this article have been reposted at the Obamacrimes website that is run by Mr. Phil Berg and are being credited to Professor Turley. I am not familiar with this blog so if Professor Turley comments under the name “John” then they are indeed correct. However, if “John” is another person then Professor Turley is being misquoted.
The comments seem to be at odds with Professor Turley’s other comments in the article and with previous comments he made on the Donofrio case on MSNBC’s Countdown program.
There is a lot of confusion amongst many people. But Natural Born Citizen, Native Born Citizen, and Citizen all have different meanings. The Framers of the constitution were not idiots when they used the word Natural Born Citizen and Citizen in the same paragraph. A natural born citizen is norn in the country of parents who are citizens (note not natural born citizens, simply citizens) So if your parents came to america and become citizens, then their children born here would be natural born citizens. However if these folks remained non-citizens for whatever reason – their children may not be natural born citizens but they would be Native born citizens and they would be citizens. Obama is a Citizen of the U.S. Obama is a Native Born Citizen (unless his BC is false) but it appears he is not a Natural Born Citizen since his father was not a citizen of the U.S. And perhaps his father never intended to become a citizen. And perhaps his father would want his son to be of the same citizenship as himself – or who knows. Never-the less – at birth – Obama was not a Natural Born Citizen because of this fact.
This just hit me about the Saxbe fix and its effect on earnings parity in the cabinet: Can’t Congress just vote again to raise the salary for Secretary of State once Hillary vacates her Senate office? If Hillary has no hand in the new vote it should be constitutional.
William Morrow also wrote “i just don’t trust anyone from chicago..”
Dumb move to post that on the site hosted by Joh Turley of the Chicago Turleys.
As they may say in Chicago, what is black and blue and bleeds and floats in Lake Michigan? Answer is the last guy who said “i just don’t trust anyone from chicago..”
Just kidding. Some low-hanging over-ripe fruit is just too tempting.
William Morrow wrote “for me, i think that if obama had a legitimate birth certificate on file in hawaii he would have shown it by now.. i think he has something to hide..”
That is false.
He has a legitimate birth certificate on file, and he has shown it.
We do not let false information go unchallenged on this site. Try somewhere else.
The Supreme Court would be nuts to let ANY of these eligibility questions to go anyplace..
the country could not take a constitutional crisis at this time not to mention the riots that would occur..
for me, i think that if obama had a legitimate birth certificate on file in hawaii he would have shown it by now..
i think he has something to hide..
i also think the fix is in and the court will not entertain any of the appeals..
i don’t give a rats-ass if he is black, mulatto or whatever..
i just don’t trust anyone from chicago..
there is always a good side to most any president..
i hope obamas good side wins and his socialist side goes away..
A friend of Leo Donofrio has another case, referred to the Supreme Court conference by Scalia for consideration Dec.12th
Prediction: Another loss for Leo and his friend.
You read it here first.
In the Huffington Post
“The court did not comment on its order Monday rejecting the call by Leo Donofrio of East Brunswick, N.J., to intervene in the presidential election.”
Take that, troublemakers.
Vince,
Once again, thank you.
FLASH
10:15 AM
Supreme Court denies application for stay in Donofrio case..
Bye, Leo.
Get it first at the Turley site.
While the Emoluments Clause raises a serious issue, the natural-born-citizen arguments are strictly at the level of urban legends, and have already been labeled false at Snopes dot com. But the meme or trope festers on in the blogs and is seeping into respectable media. This post is a little long and repetitive, but is an effort to get the falsity of the urban legend on the record before the Supreme Court sinks it.
In the latest flash, naturalborncitizen wrote HISTORICAL BREAKTHROUGH – PROOF: CHESTER ARTHUR CONCEALED HE WAS A BRITISH SUBJECT AT BIRTH. There is no breakthrough. All he has is a story that Arthur’s father was naturalized in 1843, long after Arthur’s birth, but that in no way affected Arthur’s eligibility for the Presidency.
There have always been charges that Arthur was actually born in Canada, but there has never been any proof, and there is still none. Donofrio concedes that Arthur was born in Vermont. His so-called revelation is that Arthur’s Irish-born father was not naturalized until 1843, years after Arthur’s birth. His father was actually born in the United Kingdom of Great Britain and Ireland, established by the Act of Union of 1800.
Discussing a pamphlet of the time, he writes QUOTE Hinman alleged that Arthur was born in Ireland or Canada as a British subject. It was bunk. It’s been definitively established that Chester Arthur was born in Vermont. But Hinman turns out to be correct anyway since Chester Arthur was a British citizen/subject by virtue of his father not having naturalized as a United States citizen until Chester Arthur was almost 14 years old. That means Chester Arthur was a British subject at the time of his birth. UNQUOTE
Donofrio argues that only a natural born citizen who has two U.S. citizen parents is eligible for President. That is false.
Donofrio has hopelessly confused citizenship and jurisdiction, and his confusion permeates his arguments. It is evident when he says “citizen/subject,” blending distinct concepts. An individual may be born with citizenship in one country like England. While he remains there, he is a citizen and is “subject to its jurisdiction.” He may travel or even emigrate to another country. He may remain a citizen of England and may consider himself to be an English or British subject, but he is not subject to its jurisdiction or power unless he returns there. Conversely, noncitizens in Britain may still be British subjects.
So citizenship can follow a person, whether she wants it or not. It does not give the home country any jurisdiction over her when she is abroad. Please, everyone, make this distinction and keep it in mind.
So Great Britain had no jurisdiction over Chester Arthur at his birth. He could have been a British citizen under their law, but that gave the UK no power over him in the US. Even if GB regarded him as a British subject at the time, that had no effect on his eligibility for President, because he was subject to U.S. jurisdiction.
The 14th Amendment provided for two kinds of citizens, born and naturalized. The President must be born in the United States and subject to its jurisdiction. Donofrio claims Obama is a “native born citizen”, not a “natural born citizen,” but those are his words. There is no provision for “native born” in the constitution. He is making this up.
Obama met all the requirements of the Constitution. He was born in one of the United States under U.S. jurisdiction. He was not subject to the jurisdiction or legal power of the courts or government of any other country at the time of birth. There was no dual jurisdiction. Some other country may have considered him as its citizen, giving him dual citizenship, but that did not imply dual jurisdiction.
Donofio’s approach could have dire consequences for our own country. Hundreds of thousands have fled communist Cuba and communist Vietnam and settled in the US. Their children born are natural born citizens. What if communist Cuba or communist Vietnam had a law providing all children of refugees are citizens of Cuba or Vietnam from birth, and thus have dual citizenship? Do we let the law of a foreign communist country disqualify loyal American citizens from the Presidency? Of course not. Our country does not allow the laws of a foreign nation to determine who may or not be President. Our own Constitution and laws determine this.
Other countries may even maintain that its emigres are still its citizens even after they become citizens of their new countries. This would disqualify even the children of naturalized citizens, in Donofrio’s view.
Any purported citizenship in another country has no effect on the natural born citizenship of a person born in the U.S subject to U.S. jurisdiction, or “born under the American flag.” So any British or Kenyan law treating Obama as a citizen had no effect then or now. Dual citizenship based on a foreign law is no bar to the Presidency.
So Donofrio conceded his case when he admitted Arthur was born in Vermont. He conceded his case when he admitted Obama was born in Hawaii.
And yet, even if you assume for the sake of argument that there was dual jurisdiction, which I do not, it still did not bar him under the 14th Amendment. As I have said over and over, the 14th Amendment only states “subject to the jurisdiction” of the U.S., not “subject to sole or exclusive jurisdiction,” or “not subject to any other jurisdiction.”
This was all settled in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). The question was “whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States.” The Court answered yes. 169 U.S. 649, 705.
So a child born with two parents subject to a foreign power became a citizen at the time of birth. He was a natural born citizen, not a naturalized one. He was therefore eligible to be President, despite that fact that he was born to parents subject to a foreign power.
The Court also explained the jurisdiction requirement. The Court said that “The real object of the fourteenth amendment of the constitution, in qualifying the words ‘all persons born in the United States’ by the addition ‘and subject to the jurisdiction thereof,’ would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,- children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state… “ So, aliens, diplomats, and Indian tribes [tribal law has changed and all Indians are now US Citizens].
Under the civil rights act of 1866, “’all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed,” had been declared to be citizens of the United States. The Court stated the words “not subject to any foreign power,” were not “intended to exclude any children born in this country from the citizenship which would theretofore have been their birthright.” But, the Court stated ”any possible doubt in this regard was removed when the negative words of the civil rights act, ‘not subject to any foreign power,’ gave way, in the fourteenth amendment of the constitution, to the affirmative words, ‘subject to the jurisdiction of the United States.”
So, there it is. The purpose of the jurisdiction clause was to exclude diplomats and enemy aliens, not all so-called foreign subjects. The Amendment expressly dropped the words “not subject to any foreign power.”
Now Donofrio is trying to read back into the Amendment the words that were expressly excluded. That is a fundamental error of statutory and constitutional construction. There is no basis for Donofrio’s dual jurisdiction argument. The Supreme Court has held that there is no express or implied provision that a child born in the U.S. must not be subject to any other jurisdiction.
If he dislikes it, get an Amendment ratified. Many have tried. In the meantime, he will not be allowed to cheat millions of Americans of their birthright, on no more basis than his own say-so.
The bar against naturalized citizens from the Presidency is bad enough. Now Donofrio wants some children born in America to be second-class Americans, also barred from the Presidency. It is a totally unheard-of idea, and it is going nowhere.
He also would like to overturn the choice of the American people in a free election based on his bizarre theories of who should be a natural born citizen.
This is a splendid example of a modern day nativist, Know-Nothing attitude.
Also note that 31st Vice-President Charles Curtis was the son of Native American and born on a reservation in prior to the passing of Snyder Act of 1924 which granted full citizenship to Native Americans and yet there were no issues raised prior to his inauguartion.
Also note they tried this whole “natural born” stuff with Barry Goldwater since he was born in Arizona prior to it entering the Union.
Vince:
If you had Jerry, you need no advice from the likes of me. Whatever Jerry taught you 40 years ago is still twice as good as what I could teach you today.
JT