On Wednesday morning, I have the honor of appearing before Committee of the Judiciary in the United States House of Representatives. The hearing entitled “Examining The Allegations of Misconduct of IRS Commissioner John Koskinen” will address the options facing Congress in addressing alleged misconduct by Commissioner Koskinen. The hearing will start at 10 am in Room 2141 of the Rayburn House Office Building. My testimony is linked below.
Since the hearing is focused on the options rather than the merits of congressional action against Commissioner Koskinen, I will be solely addressing the range of remedies available to the Congress under the Constitution. Having served as lead counsel before the Senate in an impeachment trial and represented the House of Representatives as an institution in a federal challenge to executive overreach, I do not take such remedies lightly. While Koskinen should have every opportunity to defend his actions, there have been objections that the House could not proceed with an impeachment or even a censure as a constitutional matter. I believe that those arguments are misplaced and that the controversy should serve to focus the attention of members on the array of options available in such cases. This includes my long-standing suggestion of a comprehensive review of both new and dormant powers that could be used in such conflicts between the branches. Congress, however, is facing an unprecedented erosion of its authority vis-à-vis the Executive Branch. If we are to see a rebalancing of the system, it will require a more active use of sanctions to deter obstruction and contempt of congressional committees.
Here is the testimony: TestimonyTurley.Censure.House.final
There is supposed to be 3 branches to our federal government. Executive, Legislative and Judicial. Today we only have 2, the Democrats and the Republicans.
Indie Bob writes, “There is supposed to be 3 branches to our federal government. Executive, Legislative and Judicial. Today we only have 2, the Democrats and the Republicans.”
‘Bout sums it up.
It is good to see that all of us agree that the only real solution to this quandary is a SCOTUS ruling on the matter. I think one has to look at the reason for the phrase natural born in the first place. it is obvious that the founders wanted to prevent foreign power influence in the office of the President. Given that intent, it is obvious that a person who was not born in the US or subject to US laws in their place of birth is not qualified since they have DUAL loyalty arising from the fact that they were natural born citizens of a foreign country, not the US. So Cruz until recently was a CANADIAN citizen, as well as a US citizen.
In many if not most countries they DO have explicit law that requires the highest office be held ONLY by a person born on native soil. Mexico, until recently mandated that BOTH parents of a President had to be born in Mexico. Germany has a similar requirement that Chancellors must have been physically born in Germany. That was a legacy of Hitler, an Austrian, since the Weimar republic did not require a person be born in Germany. So I think that stronger argument is that one must be born on US soil.
Sandi Hemming. Sorry, Sandi.
Steve – isn’t Sally Hemmings either Thomas or Randolph Jefferson’s mistress? I put that politely.
Paul, only the Shadow or Mr. Natural knows.
A friend was born in Mexico. Her father was working there and her mother was there. When she was born she was given dual citizenship until 18, then she had to choose. She chose US and was given a new passport. All these discussions seem unnecessary. More and more US companies send employees to different locations outside the US. Lots of babies will be born there. One woman had three children while her husband worked for a US company in Germany. They were given US Passports when they left. We don’t seem to have hard and fast rules on this. Maybe government employees are using common sense.
Sandi Hemming……as far as who is eligible to serve as president, the Supreme Court could settle the “natural born citizen” issue.
Until they do settle this, this debate will probably surface every four years, at least.
In straightforward cases like the ones you cited, the likely issue is citizenship.
If you throw in a giant monkey wrench into their issues of citizenship by questioning if they are “NATURAL BORN citizen”, an ill-defined constitutional requirement to serve as president, that’s when and why a endless series of discussions will ensue.
It could be put to rest once and for all if the Supreme Court directly addressed the “natural born citizen” issue.
Absent that, the debate rolls on and on. And it’s a distinct issue from normal or common citizenship issues already spelled out under law.
Is a cesarean birth natural? How about in vitro fertilization? I had always understood that if one of your parents is a US citizen then you are also. Dual citizenships occur because some countries give their citizenships anyway. When you think about it, if both parents died in a car crash, the child would be cared for.
Sandi Hemmings……again, the “natural born citizen” clause is ill-defined, or “multi-defined”.
A 35 year old American, born as an American citizen on American soil, faces no constitututional obstacle re eligibilty to serve as president.
If that same citizen is 30 years old, he/ she is clearly ineligible to serve as president.
That requirement is clear-cut. The “natural born citizen” requirement means different things to different people.
But the “natural born” debate isn’t about how a citizen is conceived or delivered.
It generally revolves around the citizenship status of one or both parents, and the PLACE, not method, of birth.
Sandi – according to Shakespeare a caesarean is not a natural birth.
Randyjet…..There were legal challenges and court rulings on Cruz’s eligibility to serve as president.
I don’t think any of them succeeded, but I also have not read summaries of the decisions in some time.
I think it was the judge in the New Jersey challenge re Cruz’s eligibility who wrote that (I’m paraphrasing) there was no absolute certainty of as to what “natural born citizen” was, given the absence of a direct, definative SCOTUS ruling on that phrase.
It may be true that if Romney had entered the primaries in 1968 that his “birther issue” would have been a campaign issue.
But what we’ve seen since 2008, involving eligibilty issues of several candidates, is unprecedented.
Given that we have the highest ratio of foreign born Americans in 85-90 years, and that the birther issues have been weaponized politically, we’re likely to see more of this in future campaigns.
The only way I see of ending the debate over these myriad definitions of natural born citizen is for SCOTUS to make A (ONE) decision.
Otherwise, we’ll continue to see this circus continue to play out, with hundreds of articles purporting to prove so and so is/is not eligible.
tnash: Problems on the issue of Cruz’s eligibility are the questions of standing to sue, mootness of the claim (for instance, now Cruz’s eligibility doesn’t matter as much as when he was starting to believe he is god’s gift, to wit, “Iowa has spoken”), and the Court’s refusal to give advisory opinions.
I think a citizen with the right to vote has standing to challenge eligibility for that office, despite anything to the contrary coming out of SCOTUS. Mootness is a problem, but because this sort of issue likely could arise in the future and because the “natural-born citizen” definition is for practical purposes nebulous, the Court should provide advisory opinions from time to time on such issues over which its decision is final. It’s either that or amend the Constitution.
Steve…..the New Jersey decision was written by judge Jeff Masin in April 2016, when the GOP race was still competitive.
There doesn’t seem to be a “high bar” to intiating legal challenges on a candidate’s constitutional eligibibilty to serve as President.
In one case, a law professor “became a candidate” for the presidential nomination solely for the purpose of establishing standing.
Here are a couple of brief excerpts from N.J. judge Masin’s decision:
“The more persuasive legal analysis is that such a child, born of a citizen-father, citizen-mother, or both,is indeed a ‘natural born citizen’ within the contemplation of the Constitution”.
He went on to write that these eligibility issues “CAN NEVER BE ENTIRELY FREE OF DOUBT, AT LEAST BARRING A DEFINATIVE RULING” by SCOTUS. (Caps are mine)
There are advantages in avoiding strict, rigid, language and definitions by the authors of our constitution.
But in the case of the “natural born citizen” issue, the absence of specific language has spawned and perpetuated a virtual industry of conflicting “conclusions” by legal experts and others.
I think Judge Masin gets to the heart of the problem in noting that we don’t have a SCOTUS decision that directly takes up the natural born citizen/ presidential eligibilty issue.
We can either get that determination, or look forward to hundreds/ thousands of articles every election cycle by those who “know” the answer(s).
tnash: Good points, every one, although personally, I think one needs to be born here plus being “born of a citizen-father, citizen-mother, or both,” as apparently was contemplated by our elite class in the late 1780s. The 14th Amendment’s auto-citizenship language doesn’t supersede the definition of natural-born citizen it seems to me.
Steve…..Because of the wording in the 1790 Naturalization Act, it looks to me that Congress went out if its way to include foreign -born children of American citizen parents as “natural born citizens”.
I don’t want to back out of this to retrieve the exact quote, but the wording was essentially that these children were natural born citizens ” though they be born beyond sea” or outside
of America.
So three years after the Constitution is written, there’s explicit language in the 1790 Act to define foreign-born children of American citizens as natural born citizens.
I’m not as familiar with the subsequent Naturalization Acts of 1795, 1798, 1802, etc., but while each act repealed the previous naturalization acts, I think they avoided redefining the 1790 concept of “natural born citizen”; subsequent acts seemed focused on length of residency requirement to attain citizenship, etc.
So overall, the earliest founding fathers’ intention seemed to want to include foreign-born America children born to U.S. citizens as “natural born citizens”, rather that require an birth on American soil.
tnash: the various naturalization acts, as you know, don’t mean squat when it comes to interpreting the Constitution, and there are varying degrees of credibility as to whether the Framers were using the Law of Nations’ definition of natural born citizen (to include one or both parents having been born here too) when they signed the Constitution.
As you pointed out to Sally Hemings, there may be a distinction between birthright citizenship through the 14th Amendment and “natural born” citizenship for purposes of eligibility for the office of President. I think the distinction is a good one.
Steve – discussing what is or is not a natural born citizen is like debating how many angels can dance on the head of a pin. Until the Supremes reach down, grow a pair and take a case from a district court, this will never be decided.
nash, I am old enough so that I DO remember that the issue came up when George Romney ran. There were serious questions that would have been raised had he stayed in the race. As for Obama, Rubio there is no questions since they were both born in the USA. My opinion is that while a person born to a US citizen while abroad is eligible for US citizenship at birth, it is NOT an accomplished fact that they are US citizens until they are registered as such. The fact is such a person could not go to the State Dept and get a passport with ONLY their birth certificate since it would not prove their citizenship. So how one could be deemed a natural born citizen with such requirements is laughable. Then there is the whole reason for the requirement which was to prevent divided loyalties in the most powerful office in the US. Having dual citizenship as Cruz had is contrary to the intent of the writers of our Constitution.
If one thinks that Cruz meets the requirements for the POTUS, then with our current laws and court decisions Winston Churchill would also be qualified to run for any office in the USA. Had he lived long enough, he could have done so.
@PaulCS
Hi Paul! Oh, I have been on one of my periodical vacations from the web. Been practicing my guitar, reading, listening to music, working on my yard, and doing some part time work for my BFF Penelope Dreadful at her law firm.
Thanks for asking!
Squeeky Fromm
Girl Reporter
Randyjet……I’m looking at the 1795 Naturalization Act, which did repealed the 1790 Act.
I stand corrected on that. A quick read of the text of the 1795 Act doesn’t seem to redefine “natural born citizen”…. I’m haven’t yet found those words in the 1795 Act.
Leaving aside the subsequent Naturalization Acts of 1798, 1802, etc., the 1795 Act seems to neither confirm what a “natural born citizen” actually is, nor does specifically redefine that status.
My tentative conclusion is that the 1795 Act muddied the waters by referring to “citizenship” at birth, but not “natural born citizenship”.
I don’t know a a SCOTUS decision that has specifically dealt with the “natural born citizen”/ presidentially eligibilty issue, and there are hundreds of articles weighing in on both sides of the issue.
Given that this debate keeps popping up (Obama, Cruz, Rubio) in recent years, I’d like to see SCOTUS put it to rest once and for all.
I don’t remember the issue even being raised when George Romney was a viable candidate c. 50 years ago, but it’s come up repeatedly since c. 2008.
@Randyjet ~> Blah blah blah. . . blah blah
Randyjet….The Naturalization Act of 1790 seems to clearly grant “natural born” citizen status to children born to American parents outside of the U.S.
As far as I know, that Act was never repealed, or superceded by subsequent legislation.
@randyjet
Wintston’s mommy lost her American citizenship when the married the British dude. That was the law for women up until the passage of the Cable(?) Act in the 1920’s or 30’s. Therefore, she had no “American citizenship” to pass down to Winston.
Squeeky Fromm
Girl Reporter
Squeeky – where you been, girl? 😉
I have a question for those who think that Ted Cruz is a natural born American since Prof Turley has quoted Madison is his article. Madison sponsored and Congress passed a law removing the definition of natural born as being a person born even abroad as a US citizen if one of the parents were US citizens. So that means that unless Congress has passed another law restoring that definition, Cruz is not natural born. The remaining definition would have to be the criterion mentioned in the 14th Amendment. So that it means only those who are born in territory governed under the laws of the US. So of course, McCain, and Goldwater were that, even though they were not born in a US state. That excludes Cruz and George Romney since they were born Canadian and Mexican citizens. Just because they were eligible to become US citizens at the time of their birth, does NOT mean that they in fact held US citizenship at birth. They had to go through a process to claim that status. It was up to the US government to grant them their citizenship since it did not flow automatically on birth. In fact, if one wishes to state that they were Americans at birth, then you will have to say the Winston Churchill could vote and run for office in the US since his mother was a US citizen at the time of his birth. Think that makes sense given our origins in war and revolution against Britain?
The IRS has given a free pass to all conservative groups in the past. Liberal groups have routinely been the target of the IRS and in fact one liberal church had its tax exempt status pulled when the pastor denounced Bush in a sermon. Yet here in Texas, the conservative churches routinely flout the IRS rules and actively promote and campaign for the GOP. It is even worse when so called non-partisan groups engage in outright partisan politics, an outright fraud on the tax code.