The Two Issues RegardingThere are two open issues regarding whether putative President Obama is eligible to be President. One is place of birth. Consider that in all the law suits filed against Obama and others on the place of birth issue, including the Kerchner v. Obama/Congress law suit (which also argued that regardless of place of birth, Obama is not and cannot be a “natural born Citizen” because he was not born in the United States to a U.S. citizen father and mother), Obama never once produced any birth certificate (neither his Certification of Live Birth known as the COLB nor his long-form, hospital generated Certificate of Live Birth) for the court which would have put an end to the birth place issue. Why did he pursue a legal strategy (e.g. standing, political question, and other justiciability defenses) which only worked in the short term rather than just produce the birth certificate which would finally end the birth place controversy?
Obama's Eligibility to be President
by: Mario Apuzzo, Esq.
Obama's Eligibility to be President
by: Mario Apuzzo, Esq.
Why spend so much private and public money and resources fighting the same issue over and over again? Even now, over two years after the 2008 election, we see the same place of birth issue raised in various contexts. It has risen in the military context with LTC Terry Lakin, who is serving 6 months in federal prison for defending the Constitution by wanting to assure that Obama is a “natural born Citizen.” We see it in ObamaCare litigation. Now some states are also moving to require proof of birth as part of a presidential candidate's requirements to get on the ballot. Officials with the National Conference of State Legislatures report that 10 states already have some sort of requirement to prove eligibility. There is Arizona's HB2544, Connecticut's SB391, Georgia's HB37, Indiana's SB114, Maine's LD34, Missouri's HB283, Montana's HB205, Nebraska's LB654, Oklahoma's SB91, SB384 and SB540, and Texas; HB295 and HB529. With Texas' 34 votes, these states possess 107 Electoral College votes. http://www.wnd.com/index.php?fa=PAGE.printable&pageId=258585 .
Hawaii Governor Abercrombie has recently revived the birth place issue, vowing to find the birth certificate and put an end to the debate. But we have seen that he found no birth certificate.
So, there is no end to the issue of Obama’s place of birth. Should we not blame Obama himself for this issue still existing? After all, the Constitution says that he must be a “natural born Citizen.” Is not the burden on him to satisfy that requirement?
Why has Obama allowed this issue to continue unabated? Why have all the Department of Justice attorneys repeatedly taken the same approach in defending Obama, i.e., fighting jurisdiction (standing) and raising any other justiciability defense? Why have they fought so hard to prevent any litigant to have discovery so that a copy of the birth certificate could be obtained? Why have they to this day never produced a copy of any birth certificate in any court which would have put an end to the birth place issue not only in that court but in all other courts present and in the future?
While the courts have not been too kind to the "birthers," why has not one court even mentioned the fact that not one court in the whole nation has yet to see Obama’s alleged birth certificate?
We even have had an Indiana court in Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind. Ct.App. 2009), declare that “persons born within the borders of the United States are ‘natural born Citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents.” But the court never even raised the issue that there was no proof before the court that Obama was "born within the borders of the United States." In fact, the Ankeny court, while dismissing the plaintiffs' case, never ruled that Obama was "born within the borders of the United States." Nor did it rule that he was a "natural born Citizen."
How can a modern and advanced nation such as the United States, a leader of the free world, a model for constitutional republican government, find itself in such a situation? We have been debating the issue of Obama’s place of birth publicly and in the courts for over 2 years and we as a nation still do not know with any reasonable degree of certainty whether Obama was born in the United States. The place of birth issue is not a conspiracy issue, but rather only one demanding conclusive proof that Obama was born in Hawaii.
But apart from the place of birth issue, we also have the question of whether Obama is an Article II "natural born Citizen." Assuming that he was born in Hawaii, does Obama meet the definition of an Article II "natural born Citizen?" The Framers' constitutional scheme, historical evidence (e.g. Emer de Vattel's The Law of Nations, Section 212), and U.S. Supreme Court precedent (e.g. Minor v. Happersett, 88 U.S. 162 (1875) show that the American common law definition of an Article II "natural born Citizen" has its basis in natural law and the law of nations and not the English common law. That definition, which to this day has never been changed, is a child born in the country (or equivalent such as being born abroad to parents in the service of their nation) to a U.S. citizen father and mother.
There is no factual dispute that when Obama was born in 1961, wherever that may be, he was born to a father who under the British Nationality Act of 1948 was a British subject/citizen and that Obama himself by descent from his father was born a British subject/citizen. Not only was Obama's father not a U.S. citizen when Obama was born, but his father never became a U.S. citizen nor was he even ever a domiciliary or permanent resident of the United States. These undisputed facts show that Obama is not and cannot be an Article II "natural born Citizen."
So, there are two open issues: was Obama born in
and if he was, is he an Article II "natural born Citizen." Assuming that Obama runs for re-election, how will our nation address these issues in the 2012 presidential campaign and election? Will Congress, other political institutions, the media, and candidates exhibit political and moral courage and tackle these issues once and for all or will they like so many others have done just turn a blind eye to the Constitution and the rule of law and continue with business as usual? Hawaii
Mario Apuzzo, Esq.
January 27, 2011
Updated February 1, 2011