Donald Trump Is a “Natural Born Citizen” But Putative President Barack Obama Is Not

Donald Trump Is a “Natural Born Citizen” But Putative President Barack Obama Is Not

By Mario Apuzzo, Esq.
March 31, 2011

Based on the information that has so far been provided to the public, I conclude that Donald Trump is an Article II "natural born Citizen" but Barack Obama is not.

The Founders and Framers understood that under natural law and the law of nations, as explained by Emer de Vattel in his, The Law of Nations, Or, Principles of the Law of Nature (London 1797) (1st ed. Neuchatel 1758) (“Vattel”), a nation’s most fundamental duty is self-preservation. They therefore included the "natural born Citizen" clause in the Constitution so that each and every citizen would be protected by having someone assume and exercise the great and singular civil and military powers of the President and Commander in Chief with only their and the nation's values and safety at heart. To accomplish that end, the Founders and Framers required in Article II, Section 1, Clause 5 of our Constitution that anyone who was a “citizen of the United States” at the time of the adoption of the Constitution was eligible to be President. But for anyone born thereafter, they built in extra protection for the nation by requiring that anyone born after the adoption of the Constitution be a “natural born Citizen.”

While a “citizen of the United States” is any citizen so made by the Fourteenth Amendment, Act of Congress, or treaty, a "natural born Citizen" is a child born in the country to citizen parents. Vattel, Sections 212-217. Here are some supporting sources, and there are more, for this definition:

(1) Founder historian, David Ramsay, who in his A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789) told us that after July 4, 1776, birthright citizenship was preserved only for a child born to U.S. citizens, making no mention of place of birth. In his 1789 article, Ramsay first explained who the “original citizens” were and then defined the “natural born citizens” as the children born to citizen parents. He said concerning the children born after the declaration of independence, “[c]itizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens….” Id. at 6. He added that “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7. He continued that citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6. As we can see, Ramsay put forth a definition of a “natural born Citizen” that only depended upon the child being born to U.S. citizen parents with no mention of place of birth;

(2) The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Chief Justice John Marshall, concurring and dissenting for other reasons, cited Vattel and provided his definition of natural born citizens and said: “Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says ‘The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights’”);

(3) Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 3 Pet. 99, 7 L.Ed. 617 (1830) (the majority, which included Chief Justice John Marshall, cited Vattel on the right of election to change one’s allegiance and thus citizenship in the context of the new nation being formed after revolution. The Court found on principles consistent with Vattel’s jus sanguinis and not on the English common law rule of jus soli, that simply being born in New York, after July 4, 1776 and before September 15, 1776, when the British took possession of New York, was not sufficient to establish one’s status as an American citizen, for a child of minor years is incapacitated from making any citizenship election but rather followed the citizenship held or chosen by the father. On the contrary, relying upon principles of the English common law, Justice Johnson and Justice Story, who wrote separate minority concurring opinions, would have found the child born in New York during the same time period a citizen of the State of New York or American citizen, respectively, regardless of the citizenship of his parents. Id. 136 and 164. This case shows what the majority rule was on citizenship and that it followed the Vattelian doctrine that a child when born took on the national character of his or her father (meaning father and mother under the doctrine of merger of the wife’s citizenship into the husband) and did not acquire his or her citizenship from the territory in which he or she was born);

(4) Dred Scott v. Sandford, 60 U.S. 393 (1857) (Justice Daniels concurring cited Vattel and The Law of Nations and provided his definition of natural born citizens and took out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively, and stated: “'The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.' Again: 'I say, to be of the country, it is necessary to be born of a person who is a citizen; for if he be born there of a foreigner, it will be only the place of his birth, and not his country. . . .'”);

(5) Minor v. Happersett, 88 U.S. (21 Wall.) 162, 167-68 (1875) (providing the same Vattelian definition without citing Vattel, and not in any way referring to the English common law, stated: “The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.” Id., 169 U.S. at 679-80);

(6) United States v. Wong Kim Ark 169 U.S. 649, 693 (1898) (a “citizen of the United States” under the Fourteenth Amendment is a child born or naturalized in the United States and “subject to the jurisdiction thereof” but an Article II “natural born Citizen” is a child born in the United States to citizen parents, citing and quoting Minor v. Happersett for that definition. The question that Minor did not answer was answered by Wong Kim Ark, wherein the United States argued that a child born in the U.S. to alien parents was not a “citizen of the United States” under the 14th Amendment. Ruling against the government, Wong Kim Ark declared a child born in the country to alien parents to be a “citizen of the United States” under the 14th Amendment. Wong Kim Ark, citing and quoting Minor and acknowledging its definition that a “natural-born citizen” was born in the country to citizen parents, in no way disturbed Minor’s definition of a “natural-born citizen,” for it was asked to decide only if Wong was a “citizen of the United States” under the 14th Amendment. Wong Kim Ark also allowed Wong to be a 14th Amendment “citizen of the United States” because it found that his parents, while not U.S. citizens, were, among other things, domiciliaries, residents of the United States, and not working in some foreign diplomatic capacity and therefore “subject to the jurisdiction” of the United States. So Wong decided only the “citizen” part of Wong’s status. It never decided whether he also had the “natural born” part. The Court cautioned in its opinion in the beginning and at its end that it was only deciding whether Wong was a “citizen of the United States” under the 14th Amendment and also informed us under what limited conditions (born in the U.S. to alien parents who were domiciled and residing in the U.S. and not employed in some foreign diplomatic capacity) it ruled that he was so); and

(7) Perkins v. Elg, 307 U.S. 325 (1939) (confirmed that a child born in the United States to a naturalized U.S. citizen father and naturalized citizen mother, the mother being derivatively naturalized by marrying a U.S. citizen, was a “natural born Citizen.”

Donald Trump has expressed some interest in running for President in 2012. We have recently seen some commentators say that Trump is not a “natural born Citizen.” The question now is whether they are correct? Trump was born on June 14, 1946, in New York to U.S. citizen parents. He is therefore a “natural born Citizen.” His father, Fred C. Trump, was born on October 11, 1905, in New York, New York. His mother, Mary Anne (Mac Leod) Trump, was born on May 10, 1912, in Stornoway, Scotland. Trumps father was a U.S. citizen when he married Trump’s mother, who at that time had not yet naturalized to be a U.S. citizen. Trump was born in the United States thereafter. Under merger of the husband’s citizenship into that of the wife which was the doctrine existing at the time the Constitution was adopted and under Elg, this makes Trump a “natural born Citizen.”

In 1924, the Congress passed the Married Women’s Act, also known as the Cable Act. This act gave each woman a nationality of her own. Under this act, an alien woman who married a U.S. citizen did not need to file a declaration of intention to become a U.S. citizen. She needed only to file a naturalization petition to become a U.S. citizen. Given their dates of birth, Trump’s parents most probably married after 1924, the year the Cable Act was passed. Hence, Trump’s mother would have had to naturalize on her own to acquire U.S. citizenship. Trump’s mother naturalized to be a U.S. citizen on her own on March 10, 1942, which is over 4 years before Trump was born. Hence, when Trump was born, both his parents were "citizens of the United States." These birth circumstances make Trump a “natural born Citizen.” See http://www.thebirthers.org/misc/trumped.html for screen shots of the supporting documentation which shows that Donald Trump is a “natural born Citizen.”

Putative President Barrack Obama might also run for re-election in 2012. While our legal and political institutions have allowed Obama to escape having to prove that he is a “natural born Citizen,” he will not be able to do the same when running for re-election in 2012. Hence, the question still remains whether Obama is a “natural born Citizen.” As I have stated repeatedly in the past, I cannot conclude that Obama is a “natural born Citizen.” Obama fails to meet the “natural born Citizen” eligibility test because when he was born in 1961 (wherever that may be), he was not born to a United States citizen father and mother.

There 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?

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 H.B. 2177 and S.B. 1157, 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. Now Donald Trump has publicly announced that Obama should do the right and simple thing and just release his long form, hospital generated 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? The question of where Obama was born is not a distraction, for it only takes 10 minutes and $10.00 to resolve (the amount of time and money needed to produce his real birth certificate).

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?

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 and also assuming that his parents are who he says they are, does Obama meet the definition of an Article II "natural born Citizen?" At his birth, his mother was a United States citizen. But under the British Nationality Act of 1948, his father, who was born in the British colony of Kenya, was born a Citizen of the United Kingdom and Colonies (CUKC) which under that same law and by descent made Obama himself a CUKC. Prior to Obama’s birth, Obama’s father neither intended to nor did he become a United States citizen. Being temporarily in the United States only for purpose of study and with the intent to return to Kenya, his father did not intend to nor did he become even a legal resident or immigrant to the United States.

The U.S. State Department has confirmed that Obama was born with dual allegiances. Leventhal cites FactCheck.org to state, "Obama was originally both a U.S. citizen and a citizen of the United Kingdom and Colonies from 1961 to 1963 given that his father was from Kenya, which gained its independence from the British Empire in 1963. Upon independence, Obama became both a U.S. and Kenyan citizen from 1963 to 1982 [sic should be 1984], and solely a U.S. citizen after that." The entry "The Obama Birth Controversy" was written by Todd Leventhal, the chief of the Counter-Misinformation Team for the U.S. Department of State.

Obama may be a plain born “citizen of the United States” under the 14th Amendment or a Congressional Act (if he was born in Hawaii). But he is not an Article II "natural born Citizen," for upon Obama's birth his father was a British subject and Obama himself by descent was also the same. Hence, Obama was born subject to a foreign power. Obama lacks the birth status of natural sole and absolute allegiance and loyalty to the United States which only the President and Commander in Chief of the Military and Vice President must have at the time of birth. Being born subject to a foreign power, he lacks sole allegiance and unity of citizenship to the United States from the time of birth which assures that required degree of natural sole and absolute birth allegiance and loyalty to the United States from birth, a trait that is constitutionally indispensable in a President and Commander in Chief of the Military. Like a naturalized citizen, who despite taking an oath later in life to having sole allegiance to the United States cannot be President because of being born subject to a foreign power, Obama too cannot be President.

Mario Apuzzo, Esq.
March 31, 2011
http://puzo1.blogspot.com/
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Mario Apuzzo, Esq.
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