Eligibility Questions: Can Clinton Serve Obama and Can Obama Serve the Country?

220px-hillary_rodham_clinton220px-barack_obamaThis 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.

170 thoughts on “Eligibility Questions: Can Clinton Serve Obama and Can Obama Serve the Country?”

  1. With Appuzo’s case approaching and the recent plublicity over cook. ie: Lou Dobbs has jumped in and liberal talk radio host Lyn Samuels echoing the birther claims yesterday this issue has heated back up as predicted. I visited Appuzo’s site and he has a new post in which he says this.

    Quote: While a natural born citizen is obviously a citizen at birth, not all citizens at birth are natural born citizens. The two legal terms of art are not identical and are not equal.

    There is absolutely nothing in that U.S. Statute, USC Title 8 Section 1401, that grants “natural born citizenship” to anyone. The legal term of art “natural born citizen” is not even mentioned in that law. USC Section 1401 only determines by law who is a “citizen” or a “national” of the U.S. at birth, i.e., a basic “citizen at birth”. The Section 1401 law is a naturalization law which grants citizenship by law, not by nature.


  2. bdaman and IS,

    Thanks for the links. I must agree with Vince; we should try to stay on topic for the thread. If you want, you can contact me over at live com using uinm. -I think you can decode that.


    “Lot of military and ex-military flocking to Cook and Taitz because of doubts about birth.

    Sure, a healthy, reasonable skepticism is good.

    Don’t remember military folk doubting GW Bush’s claims about Saddam’s WMDs, his purchase of yellowcake from Niger, and his links to AlQuaeda and responsibity for 9-11 when they were sent into Iraq.”

    Military personnel don’t have the luxury of verifying intelligence information. They do have a problem when they ask their CIC -“Who are you?” and their CIC does a dance to avoid answering. An order based on bad intelligence is still a lawful order. An order from a fraudulent commander is not lawful.

    Don’t get me wrong. Military personnel get pretty ticked-off about bad intelligence. Unfortunately, they can’t undo what has already been done.

  3. You just asked us to go elsewhere to talk about 9-11 then bring it right back up.

  4. Vince can I get your opinion on the estimated cost you think Obama has spent on his defense. While your thinking about that could you also explain your insistance that World Nut Daily confirms the COLB is authentic.

  5. Lot of military and ex-military flocking to Cook and Taitz because of doubts about birth.

    Sure, a healthy, reasonable skepticism is good.

    Don’t remember military folk doubting GW Bush’s claims about Saddam’s WMDs, his purchase of yellowcake from Niger, and his links to AlQuaeda and responsibity for 9-11 when they were sent into Iraq.

  6. IS and bdaman, this thread is for Obama birth. We came here voluntarily to keep other threads clear of this topic. Please take 9-11 tower postings over to one of the threads where all the other postings can be found.

  7. Indentured Servant: Read the link I posted above then google your question you pose to Jim you’ll find many scientist who agree with Jim. New evidence points to what He is saying.

    Put it this way Gore says the science is settled on global warming but is it. http://www.petitionproject.org/

  8. Jim Byrne:

    how did the towers come down? I thought it looked awfully much like a couple of big jetliners ran into them caused some columns to shear, forces to re-distribute and the fires caused the remaining columns to have an added thermal stress and then column buckling and collapse due to excessive stress.

    While jet fuel may not burn hot enough to melt steel it certainly burns hot enough to cause thermal stresses and those stresses can be quite high. An 800 degree temperature differential can cause a significant amount of additional stress. Please see this example at the link below and keep in mind this example is only an 80 degree differential:


    once you understand this concept I think you will see how steel can fail at high temperatures that don’t cause melting to take place.

  9. Jim, thank God(everyday) that you posted that. I’m about 90% of what you said. With the exception of I do watch Beck don’t watch Olberman and I did know who Turley was(only cuz I saw him on Olberman when I was changen channels) that is EXACTLY how I feel. In the beginning I got attacked with the you’re a troll, or a neocon, or some other term used with the intent to make you leave bull crap but I think I’ve been posting here for a couple of months now and the name calling went away. I don’t mean to lose my cool it just happens certain things just set me off. You can’t see me so when someone draws the race card and has no idea about me that just sets me off. You have no idea how it is to either watch your father cry or go after someone because they called thier son a racial slur. I grew up in a town where it was discovered that a Judge Santora after being on the bench for many many years was issuing much harsher sentences to blacks than whites for the same offenses. To make matters worse i had a personal run in with him, not in a court but on the street. Anyways it’s all good Jim, I’ve been through alot but have alot to be thankful for.

  10. bdaman,

    I think most of the people here are good people.

    When I stumbled upon this blog, I had no idea who John Turley was. -I don’t watch Rush, or Beck, or Olberman. I just found the topics to be interesting.

    I have noticed that if you agree, you’re a good guy. However, if you disagree, you’re a troll, or a neocon, or some other term used with the intent to make you leave. Some seem to forget that honorable people can disagree.

    Words are just words. They generally don’t express feeling, unless you work hard to make them do that.

    Be patient. -I think Mike S. may be having a bad day. He’s generally a pretty good guy. I’m not sure what he did for a living, but I think it had something to do with psychology. He likes to analyze people. Unfortunately, typed words are not the best reference material and he arrives at the wrong conclusions. What really bothers me is..why analyze any of us? We are all just trying to share our points of view. We all want a better country. sometimes we approach it from a different direction.

    I don’t think too much about past elections. We can’t undo the past, so why dwell on it? As for 9/11…it’s pretty much BS from beginning to end. Anyone who thinks those buildings went down because of a kerosene fire doesn’t know physics…fortunately for those perpetrating the sham..most of the country doesn’t understand physics.

  11. Vince so how much money do you think he has spent? It certainly aint zero my man and there have been alot of cases that were not free.

  12. Jim Byrne thank you for your support on the other thread. This is the first time I’ve directed any comments to you. Mike S wants to analyze people so I thought I would do a little myself. They don’t see things the way you and I do because of the republican/democrat divide. They are still mad over the 2000 election in which I believe Bush stole and now they have a democrat in office and are blind to the possibility that a democrat stole the election. With that said I was happy in the beginning with Bush and then 9-11 happened. When I saw Bush standing on a pile of rubble, his arm draped over the shoulder of the fire chief and he said those famous words, I said to myself and I’ll never forget it the only thing he is missing is a can of budwiser beer but something is not right. Then I figured out with the broad powers he enacted afterwards 9-11 served to purposes, one, a reason to go to war and two, to broaden the powers of the executive branch. Thats why they let 9-11 happen. Now Obama is in office and he’s worse than Bush. In away I hope he is on the up and up because if he gets removed we get Biden, that would be complete disaster as it would have been if Mr. I invented the internet, the world is burning Gore would of been. So in some aspects we have to be careful what we wish for. Anyways until there is proof beyound a reasonable doubt, I will believe the COLB, Selective Service Card are forgeries. I will believe that his passport info was scrubbed and the guy who did it was executed for what he knew and the list goes on and on.

    So they believe that the 2000 election was stolen from them but don’t believe it could of been done in reverse this time.

  13. Vince,

    I concur. The 14th does ensure that anyone born in the U.S., regardless of parental citizenship, would be considered a natural-born citizen, and therefore meet that qualification requirement of Article I.

  14. “All persons born … in the United States and subject to the jurisdiction thereof” are citizens,14th Amd., and since they are citizens by virtue of their birth rather than naturalizaton, they are natural born citizns. See, also, Wong Kim Ark. Nothing is said in the Constitution about parents. I have discussed this before and my posts are here and at sites reached by putting “Donofrio” or “natural born citizen” in the Search window, so I am not going into it again.

    Nothing in the Perkins entry on fees for birth challenges. Lots of money for campaign legal expenses. I posted about this on the Cheney site linking to Irregular Times.

    Leaving town for a while. Expect only a spot or two.

    I am sure JT is happy the we, his posters, have rearranged our playpen and are now playing well with each other.

  15. We know that Palin claims she has spent over $500k in defending roughly a dozen suits and it has cost Alaska, I forget couple $200k. Thats about $700k in legal fees. How many cases and counting for Obama. Regardless in some cases he is represented by the govt. those attorneys get paychecks so in esscence we the people are paying his defense in those cases.

  16. Perkins Coie was paid between last quarter of 08 and first qurater 09 over a million dollars. Not to mention the federal attorneys he is using(tax dollars)


    Again it would be as simple as saying to some independent examiners go see it for your self. Then they could make a statement that says we have seen and verified the original birth certificate. I realize people such as Kos, Fact check have seen and held the COLB but NO ONE HAS TESTED if it was a forgery.

  17. My statement was correct. If you’re born in the U.S, and both of your parents are U.S. citizens, you would meet the natural-born qualification. –I didn’t exclude those born to a single U.S. Citizen parent.

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