Friday, March 11, 2011

The States Have the Constitutional Power to Pass Legislation Prescribing Presidential Ballot Access Requirements Including Determining Whether a Candidate Meets the Eligibility Requirements of Article II, Section 1, Clause 5

The States Have the Constitutional Power to Pass Legislation Prescribing Presidential Ballot Access Requirements Including Determining Whether a Candidate Meets the Eligibility Requirements of Article II, Section 1, Clause 5

by Mario Apuzzo, Esq.
March 11, 2011

Article II, Section 1 of the U.S. Constitution tells us that the Electoral College is the mechanism used to elect the President. 3 U.S.C. Sec. 4. Article II, Section 1 also tells us how the Electoral College is filled. It says that the states shall appoint the electors who will make up the Electoral College, determining the manner of electing them and the quantity to be elected. The rest of Article II, Section 1 was changed by the Twelfth Amendment which now prescribes how the voting is done, how the votes are tallied and transmitted to Congress, and how Congress confirms those votes and declares who shall be President. Further state authority over federal elections is found in Article I, Section 4, Clause 1, which delegates to the state legislatures the initial authority for the "Times, Places and Manner" of elections to Congress, with Congress having residual authority to make such regulations. Hence, the Constitution gives to the states the authority over federal elections and specifically to appoint its electors and decide how their votes are processed for the purpose of determining who shall be President. There is therefore no question that states have the power to run their own presidential and vice-presidential elections. Storer v. Brown, 415 U.S. 724, 730 (1974) (the Election Clause, Article I, Section 4, Clause 1 which applies to Congress was intended to grant states authority to protect the integrity and regularity of the election process by regulating election procedure). As part of that process, states must also have the authority over who shall be placed on any ballot to run for president and vice-president.

This state mechanism has been recently confirmed by an April 3, 2009 Congressional Research Service Memo by Legislative Attorney, Jack Maskell, entitled, “Qualifications for the Office of President of the United States and Legal Challenges to the Eligibility of a Candidate,” wherein he stated:

“The mechanics of elections of federal officials within the several states are administered under state law. [footnote 4] The quadrennial presidential election, although required since 1845 to be held on the same day in each state [footnote 5] is, in an administrative and operational sense, fifty-one separate elections in the states and the District of Columbia for presidential electors. States generally control, within the applicable constitutional parameters, the administrative issues, questions, and mechanisms of ballot placement and ballot access. [footnote 6]

State election officials under some state ballot laws might thus require candidate "statements" or "declarations" of candidacy attesting to and/or certifying certain facts as a condition to be on the ballot; in other states, representatives of the established political parties may certify names to the Secretary of State, or the designated elections official may place viable or "recognized" candidates on the presidential preference ballots. [footnote 7] In such cases, opposing political candidates or political parties may have "standing" to legally challenge the placement of a name of an opponent on the ballot, [footnote 8] or state law may specifically provide for a procedure for timely protests to be filed concerning the qualifications of candidates. [footnote 9] Additionally, the relevant election official in the state, such as the Secretary of State, may have authority to exercise discretion to challenge a self-certification or a certification by a political party of a candidate whom the election official believes is not eligible for the office. It would appear to be a matter of state law and interpretation as to whether election officials in a particular state have discretionary authority to question the certification of a party's nominated candidate, or even a self-certification of a candidate, if such election officials were presented with actual probative, documentary evidence to rebut any presumed or self-certified eligibility. In Keyes v. Bowen, the California Supreme Court dismissed a suit against the Secretary of State which challenged President Obama's eligibility and the California electoral votes for him, finding that: "Petitioners have not identified any authority requiring the Secretary of State to make an inquiry into or demand detailed proof of citizenship from Presidential candidates," and thus mandamus (a writ of mandate) was not granted. [footnote 10] However, although no "ministerial duty" or mandatory requirement exists to support a mandamus action, there may still exist discretionary authority in such elections official." [footnote 11]. 11 See, for example, unreported case of Cleaver v Jordan, Case no. 7838 (Calif. Supreme Court minutes, Sep. 26, 1968), cert. denied, 393 U.S. 810 (1968), where California court reportedly upheld discretionary authority of Secretary of State not to list ineligible candidate for President on the ballot; and Jenness v Brown, also unreported, case no. civil 72-204 (S.D. Ohio Sep. 27, 1972), concerning ballot placement of an ineligible candidate in Ohio.”

But the states’ power to regulate election procedure is not without limitations. As the Court explained in Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006):

“States, through the Elections Clause, exercise some regulatory authority over federal elections because "as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." Storer, 415 U.S. at 730. This authority, however, is not unlimited. Any regulation of time, place, and manner must not violate other portions of the Constitution. See, e.g., Smith v. Allwright, 321 U.S. 649, 661-62, 64 S. Ct. 757, 88 L. Ed. 987 (1944) ("Texas is free to conduct her elections and limit her electorate as she may deem wise, save only as her action may be affected by the prohibitions of the United States Constitution . . . ."). In addition, "while states enjoy a wide latitude in regulating elections and in controlling ballot content and ballot access, they must exercise this power in a reasonable, nondiscriminatory, politically neutral fashion." Miller v. Moore, 169 F.3d 1119, 1125 (8th Cir. 1999).” Id. at 590.

Discussing the qualification clause for Representatives and Senators found at Article I, Section 3, Clause 3 and Article I, Section 2, Clause 2, respectively, in U.S. Term Limits v. Thornton, 514 U.S. 779 (1995), the U.S. Supreme Court stated that "the text and structure of the Constitution, the relevant historical materials, and, most importantly, the 'basic principles of our democratic system' all demonstrate that the Qualifications Clauses were intended to preclude the States from exercising any such power and to fix as exclusive the qualifications in the Constitution." The Court said that a state has no authority to change, add to, or diminish the age, citizenship, and residency requirements for members of Congress specified in their Qualification Clause found at Article I, Section 2, Clause 2 and Article I, Section 3, Clause 3. See also Powell v. McCormack, 395 U.S. 486 (1969) (relying on historical analysis and democratic principles held that the qualifications for Congress are “fixed” in the Constitution and cannot be supplemented by Congress). As Congress is limited in changing, adding to, or diminishing constitutional eligibility requirements for members of Congress, so are the states. See Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006) (same). The same reasoning would necessarily apply to the Presidential eligibility clause found at Article II, Section 1, Clause 5. Under well-established precedent, this qualification clause is exclusive and cannot be changed by a state in definition or application in a way that is contrary to the Constitution. Id. at 589. So we can see that states are not allowed to make their own definitions of eligibility for public office which violate the Constitution. A state can only apply that definition for eligibility as is prescribed by the applicable qualification clause of the Constitution.

“If a statute is unconstitutional as applied, the State may continue to enforce the statute in different circumstances where it is not unconstitutional, but if a statute is unconstitutional on its face, the State may not enforce the statute under any circumstances.” Women's Medical Professional Corp. v. Voinovich, 130 F.3d 187, 193 (6th Cir. 1997). In deciding who shall get on its election ballot, a state has to also make sure that it also complies with its own state statutes and laws. Texas Democratic Party, 459 F.3d at 592.

Mr. Maskell states in his CRS memo that there is no “formal administrative or legal requirement or oversight at the federal level, or specific state requirement to produce a birth certificate for ballot placement.” Hence, several states are now working on legislation the purpose of which is to make sure that presidential candidates who would win an election and assume the Office of President and Vice-President are eligible to hold those offices under Article II, Section 1, Clause 5. As we know, under the “natural born Citizen” clause, no one who is not a “natural born Citizen", 35 years old, and a 14-year resident may be President. Since the federal government does not require it, the states should demand to see documentary evidence showing that a candidate who intends not only to run for such office but also to assume the powers of that office should he or she win the election meets those three requirements and is therefore qualified according to the Constitution. On being a “natural born Citizen” and for those candidates who may have been born in a hospital, that would include, but not be limited to, the candidate producing a certified true copy of a valid long-form birth certificate which contains corroborating information which will enable the state to reasonably conclude that the candidate was born in the specified place and time. Such a requirement is within its powers to protect the integrity and regularity of the election.

Notwithstanding whatever powers the states may have retained under the Tenth Amendment, states cannot alter or add to the meaning of a “natural born Citizen.” As U.S. Term Limits explained in the context of qualifications for Congress, “[f]irst, we conclude that the power to add qualifications is not within the ‘original powers’ of the States, and thus is not reserved to the States by the Tenth Amendment. Second, even if States possessed some original power in this area, we conclude that the Framers intended [801] the Constitution to be the exclusive source of qualifications for Members of Congress, and that the Framers thereby "divested" States of any power to add qualifications. Id. at 800-01. Indeed, states cannot prescribe a presidential eligibility requirement that goes over and above that included in Article II, Section 1, Clause 5 itself. To do so would be unconstitutional. United States Term Limits, 514 U.S. at 807.

The Constitution does not provide a definition of the “natural born Citizen” clause. Nevertheless, the states can define the “natural born Citizen” clause based on:

(1) the text and structure of the Article II, Section 1, Clause 5 and other parts of the Constitution;

(2) the Founders’ and Framers’ intent in inserting the “natural born Citizen” clause in the Constitution which was for the safety and preservation of the nation by excluding foreign allegiance, influence, and attachment from the Office of President and Commander in Chief of the Military. On July 25, 1787, John Jay wrote a letter to General Washington, who was acting as president of the Constitutional Convention, stating: "Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen" (“born” underlined in the original). . On September 2, 1787, George Washington wrote a letter to John Jay the last line of which read: "I thank you for the hints contained in your letter." . On September 4, 1787, about 6 weeks after Jay's letter and just 2 days after Washington wrote back to Jay, the "natural born Citizen" requirement appeared in the draft of the Constitution. The proposal passed unanimously without debate which does not mean that the proposal was not discussed, for the convention meetings were conducted in secrecy. From the chronology of these events, we can conclude that it was probably Jay’s letter to Washington and his concern about foreign influence infecting the office of the Commander in Chief which motivated the Founders and Framers to insert the clause as part of the eligibility requirements to be President and Commander in Chief.

(3) relevant historical materials such as Emer de Vattel’s, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758), who told us: “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 the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see, whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country.”

Another historical reference is 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;

(4) interpretation of early Congressional Acts such as the Naturalization Acts of 1790, 1795, and others that followed. These Acts did not distinguish whether the child born to an alien was born in or out of the United States. In either case, the child was not a U.S. citizen and had to naturalize, either derivatively from the naturalizing parent if done before the child reached the age of majority or on his or her own if done thereafter. Since wives followed the national character of their husbands, this law meant that the father of a child born in the U.S. would have to naturalize which would cause both his child and his wife to then become “citizens of the United States,” not “natural born Citizens.  Also note that the 1790 Act used the language "natural born citizen" and the 1795 Act repealed the 1795 Act and replaced that clause with "citizen of the United States."  This clearly shows that the early Congresses, which included many Founders and Framers, recognized the critical difference between a "natural born Citizen" and a "citizen of the United States.  Additionally, Congress never again used the clause "natural born Citizen" in any of its Acts including the Civil Rights Act of 1866 and the 14th Amendment, using rather the clause "citizen of the United States;” and

(5) case precedent of the U.S. Supreme Court such as:

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.’”

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.

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. . . .”

Minor v. Happersett, 88 U.S. 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 (emphasis supplied).

Minor did not cite Vattel but as can be seen the Court’s definition of a “citizen” and a “natural-born citizen” are taken directly out of Vattel’s The Law of Nations, Section 212. Hence, when Minor said “common law,” it was not referring to the English common law but rather to American common law which had its basis in citizenship matters in natural law and the law of nations. Minor also distinguished between “natural-born citizens” and “citizens.” When Minor spoke of the common law, it referred to the “citizens” and the “natives or natural-born citizens,” explaining that there never has been any doubts that the children born in the country to “citizens” were the “natives or natural-born citizens.” Since Minor was being asked to apply the 14th Amendment, it then applied the common law rule to the 14th Amendment which only speaks of “citizens” and not “natives or natural-born citizens.” It then concluded that any person who is a “natural-born citizen” is necessarily also a “citizen.” The Court, was not, however, willing to go as far as to say that a child born in the country to parents who were not U.S. citizens was even a “citizen” under the 14th Amendment, let alone a “natural-born citizen.” The Court added that “there have been doubts” as to whether that child is even a “citizen.” Having decided that such a child is not a “natural-born citizen,” it left the question of whether such a child is a “citizen of the United States” under the 14th Amendment to another day.

It is important to understand that if the English common law prevailed in the United States to define national citizenship, the Court would not have stated that “there have been doubts” whether children born in the country to alien parents were citizens. Under English common law, there was no doubt that such children would have been “natural born subjects,” for under that law the citizenship of the parents was not a factor in determining subjectship when the child was born in the dominion of the King.

So Minor told us that a child born in the U.S. to non-U.S. citizen parents is not a “natural-born citizen” and that it was not necessary for it to decide whether that child was a “citizen” under the 14th Amendment because the plaintiff was born in the country to U.S. citizen parents, making her an Article II “natural-born citizen.” What is important about Minor is that the U.S. Supreme Court told us that the definition of a "natural born Citizen" is not contained in the Constitution, including the 14th Amendment, nor in any Act of Congress.  Rather, Minor defined a "natural born Citizen" under American common law which as we can see was based on natural law and the law of nations as presented by Vattel in Sections 212-217 of The Law of Nations and not under the English common law.  It also told us by implication that a child born in the country to parents who are not U.S. citizens is not a “natural-born citizen” and expressly told us that “there have been doubts” as to whether such a child is even a “citizen” under the 14th Amendment. If “there have been doubts” as to whether such a child was a “citizen” under the 14th Amendment, then given that pursuant to the grandfather clause of Article II, Section 1, Clause 5 the standard to be a “natural born citizen” was higher than that to be just a “citizen,” there is no way that such a child could be a “natural-born citizen.” After all, if one cannot satisfy the requirements to be a “citizen,” one surely cannot satisfy the requirements to be a “natural-born citizen." 

U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898): The question that Minor did not answer was answered by U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898), in which 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 Kim Ark only ruled that he was a “citizen” It never ruled that he was also “natural born.”   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 so was.  It told us that concerning “natural born” status,  Wong, being born in the United States to domiciled and resident alien parents which made him born “subject to the jurisdiction thereof,” was as much a “citizen” as a “natural born” child born in the United States to “citizen” parents.  Hence, Wong Kim Ark told us that while Wong could be a “citizen” at birth, he could not be a “natural born Citizen.”  

Perkins v. Elg, 307 U.S. 325 (1939): Other than Minor v. Happersett, Perkins is the only Supreme Court decision to declare someone a “natural born Citizen.” The person was born in the United States to a naturalized U.S. citizen father and citizen mother through derivative citizenship.

The last word on the meaning of a “natural born Citizen” was provided by Minor v. Happersett. It is important to note that the Court decided Minor after the Fourteenth Amendment was passed which tells us that the Court gave us that definition knowing that the Fourteenth Amendment defined a “citizen of the United States” and not a “natural born Citizen.” This same definition had been stated by Rep. John Bingham, who in the House on March 9, 1866, in commenting on the Civil Rights Act of 1866 which was the precursor to the Fourteenth Amendment, stated Vattel’s definition thus: "[I] find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. . . . ” John A. Bingham, (R-Ohio) US Congressman, March 9, 1866 Cong. Globe, 39th, 1st Sess., 1291 (1866), Sec. 1992 of U.S. Revised Statutes (1866). As we have seen, this definition was confirmed in U.S. v. Wong Kim Ark. Our Supreme Court has never changed this American common law definition and it prevails today. For more information on the meaning of a “natural born Citizen,” please see the many essays on its meaning at and at

While the Constitution does not define a “natural born Citizen,” the states can apply the definition of the “natural born Citizen” clause in keeping with the sources stated herein. What is imperative is that the states apply the “natural born Citizen” clause as intended by the Constitution. See Matter of Kryzan v. New York State Bd. of Elections, 2008 NY Slip Op 8354, 55 A.D.3d 1217, 865 N.Y.S.2d 793, 2008 N.Y. App. Div. LEXIS 8129 (the only requirement of New York’s election law that the candidate be a resident of the State did not violate the Constitution’s Congressional Qualification Clause). Applying the “natural born Citizen” clause in keeping with the Constitution will not violate the fundamental principle identified in Powell that in our representative form of government “the people should choose whom they please to govern them." Powell, 395 U.S. at 547. Applying the “natural born Citizen” clause pursuant to U.S. Supreme Court precedent and other sources herein identified does not create an absolute bar to any one person or a class thereof being able to be President any more than the Constitution itself requires.

The 2008 presidential election presented us with a situation in which putative President Obama has assumed and currently holds the great and singular civil and military powers of the President and Commander in Chief without proper vetting by our media and political institutions. To this date, even though there are millions of concerned Americans asking that Mr. Obama release to the public a certified copy of his long-form, hospital generated birth certificate which would conclusively prove that he was born in Hawaii, he just refuses to do so. These Americans are not satisfied with the electronic image of an alleged 2007 short-form Certification of Live Birth that Obama posted on the internet in 2008. Apart from the question of whether this computer image is authentic, this computer image does not contain the name of the birth hospital, the name of the delivery doctor, and names and signatures of persons who witnessed the birth in Hawaii. The State of Hawaii and the alleged birth hospital, Kapi’olani Medical Center for Women & Children (formerly known as Kapi’olani Maternity & Gynecological Hospital and which has neither affirmed nor denied Obama’s birth there), have also announced publicly that they cannot release Obama’s long-form, hospital generated birth certificate because of federal and state privacy laws and Obama has not given his consent to the release. How can our nation have gotten to the point where a person has been allowed to assume these great powers without having revealed to the people he is supposed to serve the necessary documents which would conclusively show that he was in fact born in Hawaii as he claims? How can a presidential candidate have any reasonable expectation of privacy in his or her birth certificate if the Constitution demands that the President be a “natural born Citizen?” Moreover, Mr. Obama was born a British subject/citizen and a "citizen of the United States" if born in Hawaii. Neither the federal authorities nor the states questioned whether a person born subject to a foreign allegiance, influence, and power can be an Article II "natural born Citizen." The states which have a constitutional duty to protect their citizens simply cannot allow a repeat of such a scenario to occur in the 2012 presidential election.

If any candidate feels damaged by a state’s application of the “natural born Citizen" clause, let that candidate file an action against the state and let the courts decide the issue. A court having to decide the issue will have to examine as the state would have done in applying the “natural born Citizen” clause the text and structure of the Constitution, the Founders’ and Framers’ intent in inserting the “natural born Citizen” clause in the Constitution, relevant historical materials, and case precedent of the U.S. Supreme Court.

Mario Apuzzo, Esq.
March 11, 2011
Revised March 22, 2013

Copyright © 2011
Mario Apuzzo, Esq.
All Rights Reserved


atticus finch said...

Mario Apuzzo wrote:
"While the Constitution does not define a “natural born Citizen,” the states can apply the definition of the “natural born Citizen” clause in keeping with the sources stated herein. What is imperative is that the states apply the “natural born Citizen” clause as intended by the Constitution."

Response: Apuzzo's position that each state has the constitutional power to define who is a "natural born citizen" would mean there could be 50 different defintions of "natural born citizen".

For example, several states would require a birth certificate showing birth in the United States while some states would require that a person be born to United States citizen parents. Furthermore, there would be other states that would require that the presidential candidate wasn't born with dual citizenship.

Allowing each state to determine who is a natural born citizen would result in Justice Stevens' words in the U.S. Term Limits case,
"would result in a patchwork of state qualifications, undermining the uniformity and the national character that the Framers envisioned and sought to ensure."

James said...


Mario Apuzzo, Esq. said...

atticus finch,

If the states apply the correct definition of a "natural born Citizen" which is a child born in the U.S. to U.S. citizen father and mother, there is not going to be any patchwork.

Or the states can decide to do a compact which would avoid the patchwork.

Or let one state get sued so that the courts can give us a uniform definition.

jayjay said...

Ia'm not all that enthusiastic about what the state politicians will do WRT ridding us of the ururper and jailing him as is proper.

After all, they are merely (many or most of them) oligarchs also just like the federal bunch.

What they are more likely to to (to fool the ignorant populace and to garner votes foer themselves) is to pass some really tough-sounding "loopholeless law" and then delay its effective date until well after the 2010 elections.

Then, too, of course, Barry-boy will merely continue his get out of jail free DOJ legal slaves to sue everything that walks, talks, or even groans so that nothing ever happens.

Our country is being trashed by a bunch of demented criminals - and the rest of us are all to blame. We are stuck on the Road TO Serfdom and are being run by a gaggle from Animal Farm.

With no serious efforts to back them up, the fine-sounding legal essays will accomp;lish naught.

Carlyle said...

Why do we think the states are largely having trouble with this? Either dragging their feet, or getting it all crossed up?

After all, it can't hurt, and it might help. This would seem like a slam dunk. Why would any legislator vote against it? It seems in everybody's best interest to have this nailed down and to lean in favor of the tightest possible constraints to be President, that the constitution will support. i.e. if there is any ambiguity at all, why not lean toward tight rather than loose?

Further, if Hisself Obama were on the up and up, even Obama Disciples should have nothing to worry about.

It makes no sense.

bdwilcox said...


Why are states having trouble passing this? Because.

bdwilcox said...

From the latest Ulsterman report: "This White House, those people…they don’t care about America. They really don’t. It’s all about them. At every g*ddamn level of every g*ddamn thing they do – it’s all about them."

-Yeah, no sh*t Sherlock! Why do you think the founding fathers demanded a Natural Born Citizen? Otherwise, we might have a CIC who has allegiances to other nations, to other interests, and doesn't care about this one.

No wonder these Obots don't think the NBC requirement is important. I simply gave them too much credit. It turns out they're too simple to understand the implications of a usurper in the White House. Good Lord, help us.

puzo1moderator said...


In both New Hampshire and in Georgia the Republican Party leadership is deliberately being recalcitrant and reluctant to allow this presidential eligibility bills to move forward out of the relevant committees. I think the RINO republican leadership in Congress in Wash DC and in the RNC is still trying to keep a lid on the 2008 election fraud and are trying to co-opt and stop or slow down those more conservative repubs who want to take action. In both NH and GA they pushed to either complete kill the bills and/or change the effective date until after the 2012 election to in effect give Obama another pass. So on protecting Article II, Section 1, Clause 5 of the U.S. Constitution, the presidential eligibility clause ... the fix is still in with the RNC and Repub Party leadership still working hand and hand with the Dem Progressives to subvert the Constitution and still allow Obama to get away with not showing his hidden and sealed records. So to get action you need to put pressure on the Repub Party House Leadership in the GA House of Reps. They are the holdouts for getting action in time for the 2012 election cycle, as I hear it. Not good when party politics trumps the constitution and when the two parties, normally mortal enemies in elections, are acting in concert to protect one man's reluctance to show his original long form birth certificate and other docs ... that man being the usurper Obama.

CDR Kerchner (Ret)

puzo1moderator said...


Here is a link to the GA House of Reps leadership. The majority party ones are all of course Republicans. Contact them all and tell them to get behind and move forward GA House Bill HB401 and get it into effect for the upcoming 2012 election cycle -- primary and general elections. Party politics and fears of reprisals against the state of GA from Obama and wrecking crew should not trump the U.S. Constitution. Obama is not their friend anyway. Get the eligibility bill in GA passed and smoke the usurper out in the upcoming 2012 presidential election cycle. Call, email, and send letters and FAXes to get HB401 moving forward to a vote in the GA House of Reps.

CDR Kerchner (Ret)


Carlyle said...

I think more 'understanding' is needed. We have all been banging our heads against a concrete wall for too long. We need to understand what the concrete wall is made of, and how thick. Even more importantly: WHY? Who put the wall there and why?

It can't be 'just' the progressive agenda. There were/are plenty of people who can push this agenda. Why Obama? And why so f'ing protective of him.

Wise people have said, "If he really has that much baggage, certainly Hillary would have crucified him", and "If he really has that much baggage, certainly McCain would have smacked him down", and the still popular, "The Repubs would pounce on a chance like this, so it must not be true".

We all KNOW that there is more than enough already "out there" to bring him down swiftly. So why the hesitation? Why to the Repubs, even the RINOs, shy from this?

There is something BIG that is not yet known. Otherwise none of this makes any sense at all. Shouldn't we spend more energy on finding this out? Some things are so big that even the law can't touch them. Is this one of those?

Texoma said...

The State of Hawaii reports that the only building damaged and lost due to the tsunami was the Department of Health's Archive for birth records. : )

Anonymous said...

I found this posted and think it needs to be spread around the internet.

Posted March 10, 2011 at 5:43 pm
Ulstermn’s insider should do more than post tantalizing information on blogs, especially if he is serious about having evidence and is a licensed attorney and an officer of the court. Perhaps, his evidence will finally sway the feds to do something other than look the other way, or allow the Holder DOJ to contain incriminating information.
I have already tried to inform the FBI that Barry came into downstate IL in the early 1970’s, stayed with a drug dealer, and told people that he wasn’t born here, but wanted to be president of this country someday anyway. He had no birth certificate and could not get a SS# in preparation for a job which had been promised to him at his neighborhood Baskin Robbins. Someone gave him a tip about CT and offered a mailing address to assist him. Barry traveled upstate (Chicago) to attend meeting with important people. He later called back to someone he met in person in Decatur, IL and informed them that he was sorry that he may have exposed them to Yaws via an open sore on on of his hands. He apologized for not having known he was contagious when he shook hands with them.
And, in the summer of 1970, Tim Geithner, his younger sister and mother came to Lake Decatur to escape the heat in Jakarta, Indonesia. Mrs. Geithner had relatives in Decatur and had spent part of her childhood on the lake to escape the summer heat.
Tim and his sister discussed Barry, his Arabic Koranic studies in Muslim garb. Tim recited Barry’s many names. Tim knew Barry was being sent by his mother, SAD, to live with relatives in HI. Tim knew his own family would soon be moving from Indonesia to Thailand.
In 2008, I was to learn that the reason Tim knew about Barry was that Peter Geithner was SAD’s boss at the Ford Foundation in Asia. Geithner, Sr. had a lead role in cultivating future leaders in China, including the current Vice Premier and the head of the Chinese Bank. After graduating from Dartmouth, Tim spent time in Bejing, China in classes and interfacing with future Chinese leaders. Peter Geithner migrated from the Ford Foundation to the IMF.
My purpose in telling you this information is my concern for the safety and fiscal viability of the nation. Unfortunately, I cannot trust Barry and am not dissuaded from what I know merely because Barry mocks people who question his background as ‘birthers.’ As Americans, we have a right to be involved in our government and to ask tough questions from our leaders and hold them accountable for their acts and omissions. We have not been taken over by the Communist Chinese or Russians..yet.

Brianroy said...

I say that the US Constitution taken literally most certainly can be used to DEFINE a US Natural Born Citizen by the parameters it sets upon itself.

1) The US Constitution demands that a US President have a US Citizen Father (21 years old and up) by all intents of Article 2.1.5 and the 14th Amendment of the US Constitution.

2) The US Constitution gives the guideline of a US Soil birth for citizenship of the first generation, and a natural paternally granted citizenship in the second generation in the 14th Amendment, because of the clear "sole legience to the United States" implied in its language, as cited by Justice Gray in Minor v. Happersett. But this is also the intent of Article 2.1.5's natural born citizen clause (1833, Justice Joseph Story's “Commentaries on the Constitution of the United States” § 1473 - "a natural born citizen of the United States… to exclude foreign influence from their executive councils and duties.
…But the general propriety of the exclusion of foreigners...It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections,
; The New Englander and Yale Law Review, Volume 3 (1845)p. 414 - "...the term ‘natural born citizen’ is used and excludes all persons owing allegiance by birth to foreign states.”; and
"The United States have not recognized a double allegiance. By our law a citizen is bound to be 'true and faithful' alone to our government."
US House of Representatives Report No.784, June 22, 1874 (6 years ff. the ratification of the 14th Amendment).

3) The US Constitution, in addition to requiring a US Citizen father (age 21 and up) at the time of the child's birth, within the sole legience of the United States, ALSO as of the 19th Amendment in 1920 requires a US Citizen mother (age 21 and up) at the time of birth. Why? Because it does not distinguish sex. Therefore in order to be natural citizenship, both sexes must be included as of the same citizenry. Further, a jus soli birth to one's native citizenship is required even beyond the two homo-citizen parentage in order to make the child a US natural born citizen under the parameters set by the US Constitution's body and amendments.

4) With the passing of the 26th Amendment in 1971, a US Citizen was then Constitutionally defined from June 30 1971 forward as being 18 years old and up. It was not a retroactive amendment applying to those who were already 19 years old and older. Hence, did not apply to Ann Dunham-Obama, and could not retroactively apply to Barack, who was by this time a de facto and de jure legal minor child registered for citizenry in Indonesia by his mother and step-father. Hence, it is suspect to whether Barack is even a US citizen with hospital record proof with witnesses to the birth as 333 us 640 @653 and 533 US 53 @ 54, 62 required for him or anyone choosing to run for the US Presidency to prove, on the books now since 2001.

Brianroy said...


“…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.”

Further, as we have seen, the expectancy of being a sole legience US Citizen is also demanded at age 21, when a person assumes his citizenship as an adult (until 1971, when it dropped to age 18 under the 26th Amendment) by Article 2.1.5 and the 14th Amendment of the US Constitution as well as at birth. So no matter what osmotic definition we are forced to examine the literal intent of the US Constitution to be (because of Leftist conspiracy), by NOT being a sole US Citizen at age 21 and age 22, as well as NOT being a sole US Citizen at birth, Obama has illegally obtained the US Presidency.

And in "Factcheck's" own words, so allegedly correct that its author Joe Miller was hired as a High Public Relations Official in the Obama Administration:
{Pulled up on and block-copied exactly on 02/04/2010}
"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.
Corrected (Sep. 3, 2009): Our original article incorrectly stated that then-Sen. Obama lost his Kenyan citizenship on Aug. 4, 1982. The correct date is Aug. 4, 1984. The Kenyan Constitution required Obama to choose whether to keep either his U.S. or Kenyan citizenship upon his 21st birthday, which was in 1982. But we initially missed that the Constitution provided him a two-year window for making that choice.
So Obama did not lose his Kenyan citizenship until his 23rd birthday in 1984. We have updated the item to reflect this.
- Joe Miller
Rocky Mountain News Staff. "Things You Might Not Know About Barack Obama." 6 August 2007. The Rocky Mountain News. 24 August 2008.
Temple, John. "8-word Gaffe Ripples Across Web." 15 August 2007. The Rocky Mountain News. 24 August 2008.
The British Nationality Act, 1948. "

Again, by being a Multi-National at ages 21 and 22, having citizenship status with at least both Great Britain and Kenya (not to mention a possible still extant claim of citizen status with Indonesia by way of adoption) Obama cannot escape that he is absolutely and unequivocally disqualified from serving in the Office of the US Presidency under the intent of Article 2.1.5 and the 14th Amendment's section 1 of the United States Constitution.

SaipanAnnie said...

Amazingly relevant these days, Mr. Apuzzo.

Well done!

lamba444 said...

I believe it is time that we, the legal born citizens of the United States of America should start flooding our Congressional offices and also our Attorney generals offices with calls for Obama's impeachment effective immediately on the grounds of his the Constitutional fraud he has committed.
Teaching Constitutional law he knowingly broke the laws of our Constitution.
In stead of flooding blogs with our comments, we should be let our voices be heard by holding our elected officials accountable for letting this fraud continue. Two of my children were born in a foreign country and I still had to contact the embassy there and get documented evidence to get a birth abroad form so they could get their social security cards and US passports. Surely this evidence of would be in the Embassy in Kenya? There has been the biggest coverup and fraud committed on true Americans and it needs redress. Every state should demand answers.

Jeff B. of Inwood said...

Uh, Mario, we aren't supposed to directly vote for president. We the people vote for presidential electors. Technically, the names of the party presidential nominees shouldn't even be on the general election ballots. The problem is that the election laws are upside down and many states prohibit the listing of the presidential electors instead connecting them to the party nominees as un-named slates.

As far as primary elections, it is the responsibility of the individual parties to vet their own candidates.

Ultimate responsibility for upholding presidential eligibility rests with Congress. They have the power to reject a nomination and send the vote back to the Electoral College. See Section 3 of the 20th Amendment.

Mick said...

Mr. Appuzo,

Bush v. Gore 531 US 98 (2000) held that the ministerial duty of the State SOSs have to be w/ discretion to Art.2 in Presidential elections.

"Held: Because it is evident that any recount seeking to meet 3 U. S. C. § 5's December 12 "safe-harbor" date would be unconstitutional under the Equal Protection Clause, the Florida Supreme Court's judgment ordering manual recounts is reversed." 531 US 98,98 (2000)

"This inquiry does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures. To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II." 531 US 98, 115 (2000)

Mick said...

ANY thought that the 14th Amendment "amended" Art. 2, or that Art.2 and the 14th Amendment should be read "in tandem", is OBLITERATED by McPhereson v. Blacker 146 US 1 (1892):

In The Slaughterhouse Cases, 16 Wall. 36, this Court held that the first clause of the Fourteenth Amendment was primarily intended to confer citizenship on the negro race, and secondly to give definitions of citizenship of the United States and citizenship of the states, and it recognized the distinction between citizenship of a state and citizenship of the United States by those definitions;" 146 US 1, 37(1892)

"The object of the Fourteenth Amendment in respect of citizenship was to preserve equality of rights and to prevent discrimination as between citizens, but not to radically change the whole theory of the relations of the state and federal governments to each other, and of both governments to the people. In re Kemmler, 136 U. S. 436". Id., 39

"We decided in Minor v. Happersett, 21 Wall. 162, that the right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the Fourteenth Amendment, and that that amendment does not add to these privileges and immunities, but simply furnishes an additional guaranty for the protection of such as the citizen already has." Id., 38

That case was about how the states must conform to Article 2 of the US Constitution in Presidential elections, although they do have latitude in their Presidential election rules. The 14th Amendment was discussed in depth, yet made NO MENTION whatsoever that a "born Citizen" of the 14A was the same as a nbC of Art 2.

Mario Apuzzo, Esq. said...


There is nothing in the text of or debates on the 14th Amendment which suggests that it was intended to confirm or amend Article II.

Mick said...


There is nothing in the text of or debates on the 14th Amendment which suggests that it was intended to confirm or amend Article II."

Of course I know that Mr. Apuzzo! Just trying to cite SCOTUS precedent of that fact, in light of the supposed "precedent" purposefully being set up to say that the 14A and Art.2 should be "read in tandem".

The McPhereson case was about Presidential elections, and the 14A was discussed in depth--- yet the court NEVER says that a born Citizen of the 14A is the same as a nbC of Art. 2. As a matter of fact they say the opposite, and limit it to protecting the rights of negroes, as well as the rights of citizens as already held by "priveledges and immunities". I am countering the offense of the Obama propogandists and apologists. It is obvious that Ankeny has been purposefully set up as a source of supposed "precedent". Notice that Minor is cited in McPhereson also.