Musings on Sports, Politics and Life in general

Are the Birthers on to Something?

A Supreme Headache

Beneath all of the coverage of the Republican primaries this election cycle, something rather startling is afoot.

What if the Republican nominee ran for the White House unopposed?

Granted, this is still a rather far-fetched supposition. But there are currently six separate ballot challenges to Barack H. Obama winding their way through various state courts. Particularly disconcerting to the Obama administration is that the courts in these states haven’t summarily dismissed these challenges, as requested by the President. Instead, hearings are underway or scheduled in all six.

While challenges in deeply the deeply red states of Alabama and Tennessee probably won’t surprise anyone, the challenges in deeply blue Illinois and Massachusetts undoubtedly will. And challenges in North Carolina and Georgia, two swing states the DNC was hoping to turn from purple to blue, have to be driving insiders in both the Democratic Party and Obama campaign nuts. Especially the one in Illinois, considering that Obama 2012 is headquartered in Chicago.

The principle issue being raised in these challenges could actually disqualify Mitt Romney, as well as the potential Vice-Presidential aspirations of Marco Rubio. It isn’t inconceivable that they could eventually make their way to the Supreme Court – and if that is the case, the entire 2012 election would be tossed for a serious loop. I mean, can you imagine a Presidential election without one candidate who would be eligible? As strange as that sounds, it could happen. And that is why I’m finding it a bit strange that there hasn’t been more extensive coverage in the media.

The issue being presented to the courts is no longer that the President was born on foreign soil, thereby making him ineligible for his office. Rather, it is the contrast between the 14th Amendment (which states that anyone born on US soil is a citizen) and Article II, section 1, which states that the President needs to be a “natural-born” citizen. Or have been a citizen at the time the Constitution was ratified – and I doubt we’re going to find anyone meets that standard. At issue is that nowhere in the Constitution does the term “natural born citizen” receive a concise definition. Granted, common sense would seem to dictate that anyone born in the US is a natural born citizen. But this is a matter of law, and so common sense will not play a part.

What does matter in these things is a thing called precedent; that is, what have previous courts ruled on the matter. And oddly enough, there isn’t any precedent upon which the legal definition of a “natural born citizen” can be ascertained. The Supreme Court was asked once before to provide clarity on the issue, in the 1872 case of Minor v. Happersett. But the court demurred, on the issue, saying the case had nothing to do with the plaintiff’s citizenship but whether women had the right to vote (women’s suffrage was still a state-by-state issue in 1872). However, the court did issue this cryptic message in their decision:

“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.” [emphasis mine]

In this decision, the Court essentially created the possibility of three types of citizens: natural-born , born (children of non-citizens or naturalized citizens born in the US), and naturalized. The implications are profound – in essence, the only potential federal office holders (since the chain of command established by the 25th Amendment makes almost all members of Congress and cabinet members potential Presidents) could be persons who can trace their citizenship not to their birth certificate, but to their lineage.  Is Nancy Pelosi a natural-born citizen under this definition? How about John Boehner? Is Leon Panetta?

Besides the long-term implications, there are the very near-term ones to consider. As I mentioned, Mitt Romney would not be considered a natural-born citizen under this definition. Try this on for size: the case or cases wind their way through the appellate process and make it to the Supreme Court. Let’s say the who process moves faster than light-speed (for the court system) and the Supreme Court rules that natural born citizens are the children of US citizens only in September. (A decision, by the way, that is not improbable even if the timing is). As  a result of such a ruling, Barack Obama would have to step down – and any laws and executive orders signed by him would become moot. Further, both parties would find themselves without a viable candidate for the Presidency (I suppose Joe Biden would become the Democratic nominee, by default).

The whole thing just snowballs from there, of course. What are your thoughts on how this could play out – not just the decision, but the potential impact. Let me know in the comments below or hit me up my email.

5 responses

  1. I’ve run into this argument on another blog. The best, most thorough response I saw was the following and I think it does a nice job of addressing the question at hand;

    ” he Minor vs. Happersett decision is NOT a ruling on the meaning of Natural Born Citizen.

    The court explicitly refused to decide whether a person born in the US without reference to the citizenship of the parents may be considered a natural born citizen.

    This ruling does not support the claim that birth in the USA to one citizen-parent is not Natural Born Citizenship. It does not even support the claim that a child born in the USA to TWO foreign parents is not a Natural Born Citizen. It simply is not a ruling. It said that it was not going to rule.

    To be sure, a person born in the USA to two US citizen parents IS a Natural Born Citizen. That is because she or he fulfills all the possible ways of being a Natural Born Citizen. But, although the court said that it was never doubted that someone who fulfilled all the possible ways of being a Natural Born Citizen is a Natural Born Citizen, it never said that all the possible ways were required.

    However, the Wong Kim Ark case, which followed the Minor vs. Happersett decision and hence would have overturned it (IF Minor was a decision, which it wasn’t), IS a decision. It ruled that EVERY child born in the USA is Natural Born (unless she or he is the child of foreign diplomats). What, then, is a Natural Born Citizen? A citizen who was Natural Born, of course. And according the the US Supreme Court in Wong (six to two, one not voting), the meaning of Natural Born comes from the common law and refers to the PLACE of birth.

    Thus all US citizens who were born in the USA are Natural Born Citizens.

    That is why such prominent conservative Senators who are also lawyers as Orren Hatch and Lindsay Graham say that a Natural Born Citizen is simply one who was born in the USA:

    Senator Lindsey Graham (R-SC), said:
    “Every child born in the United States is a natural-born United States citizen except for the children of diplomats.” (December 11, 2008 letter to constituent)

    Senator Orrin G. Hatch (R-UT), said:
    “What is a natural born citizen? Clearly, someone born within the United States or one of its territories is a natural born citizen.” (Senate Judiciary Committee hearing hearing on OCTOBER 5, 2004

    The Wall Street Journal put it this way:
    “Some birthers imagine that there is a difference between being a “citizen by birth” or a “native citizen” on the one hand and a “natural born” citizen on the other. “Eccentric” is too kind a word for this notion, which is either daft or dishonest. All three terms are identical in meaning.

    Obama received all 375 Electoral Votes that he won in the general election—despite a campaign by birthers and two-fers to have some of the electors change their votes. Not one of the 375 electors that Obama won thought that he was not a Natural Born Citizen. In addition, Obama was confirmed unanimously by the US Congress—despite a campaign by birthers and two-fers that tried to convince some members of Congress that Obama was not a Natural Born Citizen. And he was sworn in by the Chief Justice of the United States. Not even one of the Obama electors thought that Minor vs Happersett was a precedent for two citizen parents. Not even one member of Congress thought it, and the Chief Justice of the USA did not think it, obviously, or he would not have sworn in Obama.

    This meaning of Natural Born Citizen has been followed in dozens of federal court cases. For example:

    Mustata v. US Dept. of Justice, 179 F.3d 1017 (6th Cir. 1999) (children born in US to two Romanian citizens described as “natural born citizens” of the US):

    “Petitioners Marian and Lenuta Mustata are citizens of Romania. At the time of their petition, they resided in Michigan with their two minor children, who are natural born citizens of the United States.”
    The parents are both Romanian, the children are Natural Born Citizens.” What makes them Natural Born Citizens? Their birth in the USA.


    Diaz-Salazar v. INS, 700 F.2d 1156 (7th Cir. 1983) (child born in US to Mexican citizen is “natural born citizen” of US):

    “Petitioner, Sebastian Diaz-Salazar, entered the United States illegally [from Mexico] in 1974 and has been living and working in Chicago since that time. *** The relevant facts which have been placed before the INS, BIA, and this court can be summarized as follows: The petitioner has a wife and two children under the age of three in Chicago; the children are natural-born citizens of the United States.” “

    January 31, 2012 at 8:43 pm

    • I don’t disagree with you. However, it looks as if two of the lower courts will (Illionois and Georgia), which is what set up the premise of the post: what if this makes it to SCOTUS?

      January 31, 2012 at 9:31 pm

      • Oh no, I understood the premise of your post. I just thought I’d share the comment I found, which was taking the argument from a slightly different angle.

        Not sure they’ve found disagreement yet. Those courts have just agreed to hear the cases. I guess we’ll all just have to wait and see how those precedents impact their decisions.

        It will definitely be an uproar if any of those lower courts side with the birther arguments but I don’t foresee higher courts upholding them. Of course that situation will more than likely set it up for the Supreme Court especially with an imminent election.

        January 31, 2012 at 10:24 pm

      • This is where finding unbiased coverage would be helpful. I only found one from a reputable news source, the Journal-Constitution but didn’t reference it since I couldn’t cross-check it. They actually said that the judge presiding over last week’s hearing tossed the Obama argument out on its ear, since neither he nor his lawyer bothered to show. The law is a funny thing that way; common sense is the least effective argument in a courtroom (regardless how many episodes of Law & Order we may have watched).

        January 31, 2012 at 10:29 pm

      • “The law is a funny thing that way; common sense is the least effective argument in a courtroom (regardless how many episodes of Law & Order we may have watched).”

        lol! Very true 😉

        You have to wonder, though, if Obama’s lawyers did show up maybe the judge would have ruled in their favor. Maybe that just peeved him off.

        February 1, 2012 at 1:48 am

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