Wednesday, June 30, 2010
First, they argue that the Founders' and Framers' definition of a "natural born Citizen" may be found in the law of nations as commented on by Emer de Vattel in his highly influential treatise, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (1758 French edition, 1759 first English edition) and not in the inapplicable English common law. The Framers adopted the “Law of Nations” as part of Article III’s “Laws of the United States” but did not so adopt the English common law. We also know that under Article VI, the “Laws of the United States” which are made in pursuance of the Constitution “shall be the supreme Law of the Land.” Under the law of nations, a “natural born citizen” was a child born in the country to citizen parents, meaning both mother and father. Vattel, Sections 212-33. The Kerchner plaintiffs maintain that under the law of nations, Obama is not eligible to be President and Commander in Chief of the military because, being born with conflicting allegiance to Great Britain which he inherited from his non-United States citizen father and possibly to the United States if he was born in Hawaii as he claims but has not shown, he cannot meet the Founders’ and Framers’ constitutional definition of an Article II “natural born Citizen,” which requires the President and Commander in Chief of the Military to have unity of citizenship and allegiance from birth only to the United States which status is acquired at birth only if the child is born in the United States (or its equivalent) to a citizen mother and father.
Second, they also argue that Obama has not conclusively proven that he was in fact born in Hawaii or any other place in the United States and that even if he were born in the United States, at most he is a Fourteenth Amendment born "citizen of the United States" but not an Article II "natural born Citizen." At the time the Framers adopted the Constitution, they allowed persons who were "citizens of the United States" to be President, provided that they had that status as of the time the Constitution was adopted which we know was 1787. If a child did not have that status at that time, the Framers required that a would-be President be a "natural born Citizen." There is no denying from a simple reading of its text that the Fourteenth Amendment only grants to individuals, who can acquire by either birth or naturalization in the United States and being “subject to the jurisdiction thereof,” the equal status of a "citizen of the United States." The amendment makes no mention of a “natural born Citizen” and surely would not by implication equate a “citizen of the United States” with a “natural born Citizen” since the Framers in Article II were careful to make a distinction between the two types of citizens and we must give meaning to the words the Framers so chose and a naturalized citizen can be a “citizen of the United States” but cannot be a “natural born Citizen.” Hence, the Amendment only defined the Framers' "citizen of the United States," which status created doubts throughout our history but did not define the Framers’ "natural born Citizen" which never created any doubts as to its meaning and therefore needed no clarification through any constitutional amendment.
Hence, if Obama was born in Hawaii, he would fall under the Framers’ "citizen of the United States" status as later defined by the Fourteenth Amendment. But being a born "citizen of the United States" under the Fourteenth Amendment in 1961 is not sufficient to establish eligibility under Article II which now requires that Obama be a "natural born Citizen." There is also no denying that being born in 1961, Obama was not a “citizen of the United States” at the time the Constitution was adopted in 1787. Hence, to be eligible to be President, he must be a “natural born Citizen.” But if Obama was born in Hawaii which we know was to a non-U.S. citizen father and U.S. citizen mother, he would be a born "citizen of the United States" under the Fourteenth Amendment but not a "natural born Citizen" under Article II. So even if Obama was born in Hawaii, he would not be eligible to be President under Article II.
I have already reported that the U.S. Third Circuit Court of Appeals which sits in Philadelphia decided it did not need oral arguments on the Kerchner appeal to that Court and that the Court would receive the case on Tuesday, June 29, 2010 for decision on the briefs. I have also been informed that the Third Circuit Panel that will decide the appeal will be comprised of Circuit Judges Sloviter, Barry, and Hardiman. See the latest 3rd Circuit Court of Appeals Summary Docket for this case here.
Now we have to wait for the Court to render its decision. We do not know how long it will take to do so. We can only presume that the Court is aware of the critical importance of this issue and that my clients need to know as soon as possible where they stand. Hence, I believe that we can expect that the Court will provide us with its decision in the not too distant future.
If the Third Circuit Court of Appeals reverses the Federal District Court’s dismissal of the Kerchner case, the case will most likely return to that lower court for discovery and trial. On the other hand, if the Court affirms the lower court because of standing and/or political question, we will then file a petition for certiorari with the United States Supreme Court which will in any event provide the final judicial word on Obama’s eligibility to be President and Commander in Chief of the Military.
Mario Apuzzo, Esq.
June 30, 2010