Congress Should Not Confirm Barack Obama As President, For He Is Not an Article II "Natural Born Citizen"

Congress Should Not Confirm Barack Obama As President, For He Is Not an 
                                      Article II “Natural Born Citizen”


                                            By Mario Apuzzo, Esq.
                                               December 30, 2012

       The joint session of Congress meets to
count the 2008 Electoral College vote 





 



The issue of Obama’s eligibility to be President has always been whether he is an Article II “natural born Citizen.” And that issue has always been about answering two questions: (1) whether he was born in the United States and (2) whether at the time of his birth in the United States he was born to United States citizen parents, for a “natural born Citizen” is defined as a child born in a country to parents who were citizens of that country. See Mario Apuzzo, The Two Constitutional Obstacles Obama Has to Overcome to be President, at http://puzo1.blogspot.com/2008/12/two-constitutional-obstacles-obama-has.html (published on December 20, 2008).

Obama eligibility supporters like to focus on the first question, place of birth, for it lends to so much controversy, speculation, and confusion. The place of birth question raises concerns about whether Obama’s birth certificate, social security number, and draft registration card are false. Of course, for any of that to be true would necessitate conspiracy among many individuals employed by various state and federal government agencies. The charges of conspiracy gives Obama's supporters great opportunity to ridicule and mock concerned American citizens who--given that Obama has never released his original birth certificate to any controlling government authority, Obama still refuses to give his consent to release to the public his birth, education, travel, and work records, and some have uncovered unconfirmed information suggesting that Obama was born in Kenya--are still searching for a conclusive answer to the question of whether Obama was born in the United States. These Obama supporters bask in the ease by which they are able to attack those who, without any government or law enforcement assistance, are still investigating Obama’s place of birth with little resources available to them. These Obama eligibility supporters also like to make everyone think that the place of birth issue seals a victory for Obama and them. But such a statement is false.

These Obama eligibility supporters have not been able to adequately cast off either by way of any current well-researched and reasoned court decision or otherwise the other requirement for being a “natural born Citizen,” i.e., that the child must be born to parents who were citizens of the country when the child was born. As we can see below, there is a great amount of historical, U.S. Supreme Court, and Congressional sources that confirms this additional requirement which neither a handful of lower law and administrative courts--which have ruled that they have no jurisdiction or plaintiffs have no standing, but yet have still decided the merits of the question of whether Obama is a “natural born Citizen”--nor these Obama eligibility supporters have been able to adequately address.

What does all this mean for Congress which on January 4, 2013 will be counting the Electoral College votes and deciding whether President Elect Barack Obama is constitutionally qualified to be President? Under Article I, II, and III, the legislative, executive, and judicial branches of government are each given specific and exclusive powers. This is our separation of powers feature of our tripartite form of government. Under this doctrine, powers given to one branch are not to be exercised by any other. Under this scheme and specifically under Article III, the power to interpret the constitution is given solely to the judiciary. The Constitution does not textually commit the resolution of the question of what is a “natural born Citizen” to any specific branch of government other than the judicial branch. The question is no different from the question faced countless times by our nation’s federal and state courts when deciding what the applicable eligibility requirements for any given elected office are. Hence, the constitutional question of the meaning of a “natural born Citizen” is left to the judicial branch to resolve.

Article II, Section 1, Clause 5 provides: “No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a resident within the United States.” Hence, “natural born Citizen” is one of the three exclusive constitutional eligibility requirements to be President found in this article, with the other two being a minimum of 35 years of age and 14 years of U.S. residency. As Powell v. McCormack, 395 U. S. 486, 519 (1969) explained, to determine the nature and extent of constitutionally specified eligibility qualifications is within the court’s power to do. Id. at 522. Determining what a “natural born Citizen” is involves determining the meaning of a constitutional provision which is strictly within the power of the courts to decide. It is a constitutional birth status. The Constitution gives to the courts the authority and the specific task of interpreting the Constitution, which necessarily includes the words and clauses it uses. “Natural born Citizen” is a clause that exists in the Constitution. As Marbury v. Madison, 1 Cranch 163 (1803) long ago established, our judicial branch of government is duty bound to interpret the Constitution to provide meaning to its clauses and is well equipped to do so. In fact, the courts have been doing just that since the Founding. In fact, our judicial branch of government has for centuries engaged in judicial review of matters involving citizenship. The courts are therefore well equipped to interpret the Constitution which includes interpreting and applying the “natural born Citizen” clause, whose decision on the matter Congress must then respect.

In matter of citizenship, Congress has under Article I, Section 8, Clause 4, power only to make uniform the laws of naturalization. This power does not include the power to define an Article II “natural born Citizen.” To grant Congress the sole or any authority to decide what a “natural born Citizen” is would also defeat the U.S. Supreme Court’s constitutional mandate that it is the “ultimate interpreter of the Constitution.” Nixon v. United States, 506 U.S. 224, 237 (1993). Indeed, Congress is constitutionally bound to follow the lead of the U.S. Supreme Court on the meaning and application of the Constitution. Apart from the First Congress in the Naturalization Act of 1790 considering as a "natural born citizen" a person born out of the United States to U.S. citizen parents which the Third Congress changed to considered as a "citizen of the United States" in the Naturalization Act of 1795, and later Congresses just applying the already existing definition of the clause and providing a different definition of a “citizen of the United States” at birth under the Fourteenth Amendment, neither the Constitution nor historical practice show that Congress has ever taken it upon itself to define a “natural born Citizen.” Finally, for the Congress to take it upon itself to define a “natural born Citizen” in a manner that is not consistent with U.S. Supreme Court precedent would be an unconstitutional usurpation of judicial power which belongs only to the U.S. Supreme Court.

The Twentieth Amendment and 3 U.S.C. Sec. 1 et seq. provide a mechanism for Congress to follow when meeting in joint session for the purpose of counting the Electoral College votes and confirming the constitutional eligibility of a President Elect to actually hold that office. But while Congress surely has the power to count Electoral College votes and if necessary fully investigate the question of a President Elect’s constitutional eligibility to be President and make a decision based on its own investigation, the extent of its investigation can only go as far as its legislative and regulatory powers allow it to go. Again, Congress has no direct power to define a “natural born Citizen.” Defining a “natural born Citizen” also does not fall under any investigation in aid of any legislative function. Also, the Twentieth Amendment does not commit to Congress the task of determining what a “natural born Citizen” is, i.e., what is the definition of a “natural born Citizen.” See Nixon, 506 U.S. at 237 (“Our conclusion in Powell was based on the fixed meaning of ‘[q]ualifications’ set forth in Art. I, § 2. The claim by the House that its power to ‘be the Judge of the Elections, Returns and Qualifications of its own Members’ was a textual commitment of unreviewable authority was defeated by the existence of this separate provision specifying the only qualifications which might be imposed for House membership. The decision as to whether a Member satisfied these qualifications was placed with the House, but the decision as to what these qualifications consisted of was not” (citing and discussing Powell v. McCormack, 395 U.S. 486, 539 (1969)). See also Powell v. McCormack, 395 U.S. 486, 550 (1969) (in invalidating the House's decision not to seat a Member accused of misuse of funds, the Court held that “in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution"). Surely, if Congress cannot add to those constitutionally prescribed qualifications for its own members, it also cannot take away from them. Giving Congress the power to define a “natural born Citizen” with respect to presidential qualifications would do just that, either add to the definition or take away from it and thereby impact on the qualifications to be President. Hence, it is clear under Powell that it is the U.S. Supreme Court which must determine the meaning of a “natural born Citizen,” and not Congress.

When the matter in issue is eligibility for public office, the point is well made by Justice Stevens in his concurring opinion in Nixon v. United States:

“In Powell, the House of Representatives argued that the grant to Congress of the power to ‘Judge’ the qualifications of its members in Art. I, § 5, precluded the Court from reviewing the House's decision that Powell was not fit for membership. We held to the contrary, noting that, although the Constitution leaves the power to "Judge" in the hands of Congress, it also enumerates, in Art. I, § 2, the ‘qualifications’ whose presence or absence Congress must adjudge. It is precisely the business of the courts, we concluded, to determine the nature and extent of these constitutionally specified qualifications. Id., at 522. The majority finds this case different from Powell only on the grounds that, whereas the qualifications 246*246 of Art. I, § 2, are readily susceptible to judicial interpretation, the term ‘try’ does not provide an ‘identifiable textual limit on the authority which is committed to the Senate.’ Ante, at 238.”

Nixon, at 245-46 (J. Stevens, concurring). The Constitution under the Twentieth Amendment gives to Congress the authority to decide whether a President Elect is constitutionally qualified for that office. But it also specifies in Article II, Section 1, Clause 5 what “‘qualifications whose presence or absence Congress must adjudge.’” And it is “precisely the business of the courts . . . to determine the nature and extent of these constitutionally specified qualifications.” Indeed, these qualifications are “readily susceptible to judicial interpretation.” Id.

So, while the members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates, it is first the courts, interpreting and applying the eligibility criteria found in Article II, Section 1, Clause 5, which includes the “natural born Citizen” clause, which must first inform them whether a President Elect is constitutionally qualified for that office. To hold that Congress alone is qualified to adjudicate objections to any “unqualified” president elect is simply to beg the question of that person’s eligibility for that office.

So, does a settled definition of an Article II “natural born Citizen” exist which Congress is constitutionally bound to apply when deciding whether Obama is Article II eligible to be President? While the Constitution does not provide any fixed meaning of the “natural-born Citizen” clause, there exist outside the Constitution specific standards for us to follow in deciding what the definition of a “natural born Citizen” is and whether Obama meets that definition. These standards exist in historical, U.S. Supreme Court, and Congressional sources. For example, Minor v. Happersett 88 U.S. 162 (1875) has held that a “natural-born citizen” is a child born in a country to parents who were its citizens when the child was born. The unanimous U.S. Supreme Court held there:

“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.”

Minor, at 167-68.

Then United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898) held that 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 and its definition of the clause. The question that Minor did not answer, i.e., whether a child born in the United States to alien parents is a Fourteenth Amendment “citizen of the United States,” 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 Fourteenth Amendment. Ruling against the government, Wong Kim Ark declared a child born in the country to domiciled and resident alien parents to be a “citizen of the United States” at birth under the Fourteenth 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 Fourteenth Amendment. Wong Kim Ark also allowed Wong to be a Fourteenth 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 Fourteenth 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. Hence, a Wong “citizen of the United States” at birth is not to be conflated or confounded with an Article II “natural born Citizen.”

For a full analysis and discussion of these and other sources which confirm that a “natural born Citizen” is a child born in a country to parents who were citizens of that country, see, among other sources such as the various briefs that I have filed with the courts in New Jersey (Kerchner v. Obama; Purpura and Moran v. Obama), Pennsylvania (Kerchner and Laudenslager v. Obama), Virginia (Tisdale v. Obama), and Vermont (Paige v. Obama), and the many articles that I have written at my blog, http://puzo1.blogspot.com/ , Mario Apuzzo, Barack Obama Is Ineligible to be President, For He Is Neither a “Natural Born Citizen” Nor a “Citizen of the United States, at the time of the Adoption of this Constitution,” at http://puzo1.blogspot.com/2012/10/barack-obama-is-ineligible-to-be.html (wherein I demonstrate that a “natural born Citizen” has always been defined in our nation as a child born in a country to parents who were citizens of the country and that that definition has never been changed by constitutional amendment or by the U.S. Supreme Court and that a “citizen of the United States” at birth under the Fourteenth Amendment and Wong Kim Ark is not to be conflated and confounded with a “natural born Citizen”) and Mario Apuzzo, Logic and Defining the “Natural Born Citizen” Clause, at http://puzo1.blogspot.com/2012/11/logic-and-defining-natural-born-citizen.html (where I show how some lower courts and Obama eligibility supporters have engaged in fallacious logical reasoning in how they have defined a “natural born Citizen”).

Having found and confirmed the time-honored definition of a “natural born Citizen,” Congress must then apply that definition to Obama. Assuming that Obama was born in Hawaii, the undisputed facts show the following:

“When Barack Obama Jr. was born on Aug. 4, 1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. [ http://www.uniset.ca/naty/BNA1948.htm ] That same act governed the status of Obama Sr.’s children:

British Nationality Act of 1948 (Part II, Section 5): ‘Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth.’

In other words, at the time of his birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in Hawaii) and a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC.

Obama’s British citizenship was short-lived. On Dec. 12, 1963, Kenya formally gained its independence from the United Kingdom. Chapter VI, Section 87 of the Kenyan Constitution specifies that:

‘1. Every person who, having been born in Kenya, is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall become a citizen of Kenya on 12th December, 1963…

2. Every person who, having been born outside Kenya, is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall, if his father becomes, or would but for his death have become, a citizen of Kenya by virtue of subsection (1), become a citizen of Kenya on 12th December, 1963.’

As a citizen of the UKC who was born in Kenya, Obama’s father automatically received Kenyan citizenship via subsection (1). So given that Obama qualified for citizen of the UKC status at birth and given that Obama’s father became a Kenyan citizen via subsection (1), it follows that Obama did in fact have Kenyan citizenship after 1963.”

http://www.factcheck.org/2008/08/obamas-kenyan-citizenship/ . Todd Leventhal, the chief of the Counter-Misinformation Team for the U.S. Department of State, has accepted as true this description of Obama’s birth circumstances and so stated on a State Department web page, http://blogs.america.gov/rumors/2009/08/21/the-obama-birth-controversy/ , This site now reads: “This site has been archived or suspended.”

Factcheck, in its attempt to show that Obama is a “natural born Citizen,” added: “[T]he Kenyan Constitution prohibits dual citizenship for adults. Kenya recognizes dual citizenship for children, but Kenya’s Constitution specifies that at age 23, Kenyan citizens who possesses [sic] citizenship in more than one country automatically lose their Kenyan citizenship unless they formally renounce any non-Kenyan citizenship and swear an oath of allegiance to Kenya.

Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4, 1984.”

Id.

But that Obama may have lost his British/Kenyan citizenship after his birth (there is no evidence that Obama ever renounced his British birth citizenship), like an alien losing his or her native citizenship later in life and becoming a U.S. citizen after birth, does not nor can it change his birth circumstances. He still was not born a “natural born Citizen” and cannot become one later in life.

So, Obama, even if born in Hawaii in 1961, while born to a U.S. citizen mother, was not born to a U.S. citizen father. Under the British Nationality Act 1948, Obama’s father, being born in Kenya when it was a British colony, was a British/Kenyan citizen. While he traveled to the United States on a student visa to study, he never became a U.S. citizen. Under the same British Nationality Act 1948, Obama himself, through inheritance from his father, was born a British citizen. Under the Kenya Independence Act 1963, also became a Kenyan citizen as age 2.

The Founders and Framers demanded that future presidents, who also were to be our commanders in chief of the military, have allegiance and loyalty from birth only to the United States. Being born the citizen of a foreign country, like a person who is born a citizen of a foreign country and who naturalizes to become a “citizen of the United States” after birth and who we have always recognized as being eligible to be President only if born before the adoption of the Constitution, Obama was not born with sole allegiance and loyalty from birth to the United States. The practical consequence of his birth which no one can change is that he not only was not born with unity of allegiance and citizenship to the United States, but he also was not born within the full and complete political and military jurisdiction of the United States. So, Obama from birth was not fully committed both politically and militarily to the United States, nor could the United States expect such total commitment from him. Obama therefore cannot be an Article II “natural born Citizen,” which under our Constitution is required only of the President, who is also the Commander in Chief of the Military, and the Vice President. who stands to take over the President’s civil and military powers should the need arise.

Apparently, if he was born in Hawaii, Obama can meet the more liberal definition of a Fourteenth Amendment “citizen of the United States” at birth, i.e., born in the United States and “subject to the jurisdiction thereof.” Under this definition, a child born in the United States to domiciled and resident alien parents is a “citizen of the United States” at birth. Wong Kim Ark. But he cannot meet the more stringent definition of an Article II “natural born Citizen,” which only applies to presidential and vice presidential eligibility, born in the United States to citizen parents. Minor. Since, Obama is neither “a natural born Citizen” nor “a citizen of the United States, at the time of the adoption of this Constitution” (was adopted in 1787), Obama is not eligible to be President and Commander in Chief.

One might ask what Congress can possibly do at Obama’s January 4 confirmation hearing given that it has already once confirmed him to be eligible and he has already served one term as President. That Obama has been President for the last four years does not mean that he is a constitutionally legitimate president. Rather, given that Obama is not Article II eligible to be president, he has acted as a de facto president but not a de jure one. A de facto president is a president who is not constitutionally legitimate but who has usurped the office and its powers and who because of practical reasons is tolerated for the time he occupies and exercises the powers of the office, but who can be legally removed through a prescribed legal process. On the other hand, a de jure president is a president who is constitutionally legitimate. Needless to say, tolerating a de facto president (one that is not a “natural born Citizen”) rather than a de jure president not only renders Article II’s presidential eligibility requirement meaningless, flouts the rule of law, and is inimical to a constitutional republic such as the United States of America, but puts the safety and security of our nation at risk.

Our historical precedents have spoken as to who is a “natural born Citizen.” The U.S. Supreme Court has confirmed the definition to be a child born in the country to citizen parents. Congress is constitutionally bound to apply this definition to Obama. Congress’s failure to apply this definition to Obama and to again declare him President of the United States would amount to nothing more than treason upon the constitution and the nation by allowing a de facto president to continue in that all powerful office for a second term rather than a constitutionally legitimate one. The fate of the nation is in the hands of Congress on January 4, 2013.

Mario Apuzzo, Esq.
December 30, 2012
http://puzo1.blogspot.com
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Mario Apuzzo, Esq.
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