Originally published by Mike gamecock DeVine as Legal Editor for The Minority Report
When, in my ignorance, I thought the “natural born citizen” requirement for the presidency depended one being delivered from the womb within the territorial confines of one of the Fifty States or the District of Columbia, DeVine Law considered state and court refusals to require the production of the President-Elects original long form birth certificate an important issue.
I defended court refusals prior to the election on the grounds of “standing” and “ripeness”, and refusals after the election on the grounds of political questions that could best be dealt with by the Electoral College or Congress.
As I contemplated a serious legal analysis on the issue, other issues came to mind as I conducted some research, especially as the Supreme Court considered a petition for a Writ of Certiorari in the Donofrio case.
Firstly, I considered the “natural born” clause in Article II of the Constitution to be vague and without any enforcement mechanism provided, thereby making it very likely that the U.S. Supreme Court would invoke the political question rule and never rule on the merits of the clause. After all, the American people can enforce the rule at the ballot box, and, as referred to above, in Congress or the Electoral College. And, if newly discovered evidence were produced, via Impeachment.
Secondly, Donofrio and others that accepted his position that situs of birth was irrelevant (which is a very persuasive argument), never addressed the merits of their express or implied claims that either, only the father’s citizenship status at the birth of a child is dispositive; or, that both parents must be American citizens at birth.
As a lawyer, I knew instinctively that Donofrio’s case made some great points but that it contained some fatal flaws based mainly on issues he failed to address and on how superficially it address others. So, after much laziness, I read the brief and concluded that the fatal flaw was the refusal to address in detail, the significance of the fact that his mother was, as far as we know, a citizen of the United States when Barack Obama was born. Moreover, while Donofrio asserted that dual citizenship at birth rendered one un-naturally born, he cited no authority for this position.
Then, just before I was going to do the research I deemed necessary for me to put my legal reputation on the line before I wrote a column, I discovered a column by a courageous non-lawyer that had already done the paralegal work for me.
Let DeVine Law show why the layman deserves an A grade below, but also read the whole piece especially for an explanation of why it was so cowardly for many usual conservative giants to poo poo the whole issue:
Unfortunately, the Constitution does not spell out what is meant by “natural born.” Even more unfortunately, it is not spelled out anywhere in unambiguous terms that we can all agree on. No one can provide a URL, for example, that will lead you to the “official” definition of “natural born.”
Given that, it is up to courts to decide what “natural born” means. There are legal arguments for various definitions, but these are arguments to be heard by courts. The courts have not yet spoken, at least clearly. This is exactly where reasonable people can disagree. Some people might claim to “know” what the definition is or should be. I’m saying no one knows, just as no one knows what “arms” means in the 2nd Amendment or “cruel and unusual” in the 8th.
And here is where it gets interesting. For some not-unreasonable definitions of “natural born”, the location of Obama’s birth is irrelevant, meaning the whole “birth certificate” issue (e.g., “long form” vs. “short form”) could be irrelevant. At one extreme in the definition, Obama is not natural born regardless of the location of his birth. At the other extreme, he is natural born regardless.
Absence of Congressional definition on point.
I do accept that there is a reasonable “weak” definition of “natural born” that applies in Obama’s case, and does not require him to have been born in the US.
I’m willing to accept that the courts, even giving due diligence, could decide to accept some kind of “weak” version without hearing oral arguments, and therefore appearing to dismiss the case without hearing it.
I am conceding no principle here. The Constitution is not defiled. This boils down to the legal definition of a phrase, “natural born”, defined neither in the Constitution nor US law. If Congress does not write a specific statute to define the term, only the courts can define it right now, or allow current interpretations to stand, sketchy as they might be.
That is the nub of the case. I know, quite a “nub.” And I haven’t even gotten to what I mean by “weak” and “strong” definitions of “natural born.”
Weak definition informed by Congressional definition of “citizens at birth” as equivalent to natural born.
US Code 1401 states that “The following shall be nationals and citizens of the United States at birth”:
“(a) a person born in the United States, and subject to the jurisdiction thereof.”
“(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of [honorable military service outside the US, etc.] may be included in order to satisfy the physical-presence requirement of this paragraph.”
Renunciations may only be effective when one is an adult and operations of law may not strip a mother of same.
If he was born outside the US and even if his father was an alien, he was a citizen at birth as long as his mother was a citizen and “was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.” I’ve heard no one dispute that his mother would not meet these physical-presence requirements.
Obama is a “citizen at birth” according to the current USC 1401.
Some of our advanced students might note that Obama might have had dual citizenship or that he later became a citizen of Indonesia. There is nothing in the USC 1401 definition of “citizen at birth” that says simultaneous citizenship elsewhere at birth negates it. And if we dig deeper, into USC 1481 on Loss of Nationality , we find
“(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality-
(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or …”
The law goes on to other cases, but none of which appear to apply to Obama. In Obama’s case, we would require that he relinquished his nationality “voluntarily” and with “intention” and “after having attained the age of eighteen years.” To my knowledge, none of these apply to Obama, who was back from Indonesia and living in Hawaii by age 10 or so.
The case is submitted.
Mike DeVine’s Charlotte Observer, Examiner.com and Minority Report columns
“One man with courage makes a majority.” – Andrew Jackson