Born in Kenya, Nearly Irrelevant — by Patrokles
What if Barack Hussein Obama were actually to have been born in Kenya in 1961? While there may be many issues surrounding the “Certificate of Live Birth”, said to have been issued by the State of Hawaii, and while he may have claimed Kenyan birth earlier in his life, and while there remain many questions regarding his social security number, transcripts, and other “sealed” parts of his past, the purpose of the following article is not to deal with the veracity any documents, or even the consequences if that document were to be proven false. This is merely a legal analysis of the ramifications if Mr. Obama was indeed born in Kenya, leaving all other collateral matters aside. The following analysis presupposes that Mr. Obama was born in Kenya, is the son to a United States citizen (Stanley Ann Dunham) and a foreign national.
If it turns out that Mr. Obama’s paternal grandmother, and his relatives in Kenya, are correct, and Mr. Obama was born in Kenya, then Article 2, section 1, of the US Constitution may prohibit his serving as President of the United States. Article 2 of the US Constitution lays out the powers of the executive branch, the election of the president, and the pre-requisite qualifications for being president. It states;
…No person except a natural born Citizen, or a Citizen of the Untied 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….
It is worth noting that nothing within the Constitution prohibits a non-natural born citizen from running for the office of president, it merely states that such a person cannot be president. So, no law or constitutional provision will have been violated through Mr. Obama’s mere candidacy. However, once elected in the general election, the matter becomes paramount. That Federal courts have been essentially “dodging” the issue, does not make the matter vanish, rather it damages the perception of the rule of law in the United States. At this juncture, only the United States Supreme Court, can resolve the issue, in much the manner of Bush v. Gore. Once before the Supreme Court, they would be called upon to interpret the above listed language.
The US constitution itself does not define “citizenship”, or even “natural born citizen”. The 14th Amendment to the US Constitution, ratified July 28, 1868, reads;
…All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State in which they reside…..
While this clearly defines citizenship, it does not define the process of naturalization, nor does it distinguish what is a “natural born citizen”. While this may seem obvious, consider the following. The Constitution says, “natural born citizen”, it does not say, “person born on US soil”. If a married man and woman, serving as diplomats for the United States, in a foreign embassy, have a child at a local hospital, does this make that child not a “natural born citizen”? Must the child apply for citizenship and become a naturalized citizen? What about a US military officer and his US citizen wife, living on aUS military base overseas? Are these children “natural born citizens” the product of two US citizen parents, serving US interests overseas? In fact, this was the circumstance of the birth of Senator McCain, Senator Obama’s opponent in this very same election. Senator McCain was born in the Panama Canal Zone, son of a Naval officers and his wife, at a time when the Panama Canal Zone was a US territory (neither a state, nor a foreign country). What about the case where only one parent is the US citizen? What if the citizen is the mother? What if the citizen is the father, and paternity must be proven? As in so many matters of US Constitutional law, the matter only appears simple and clear at first glance, but upon closer inspection can become a complexity indeed.
For clarification, and to emulate the process which the US Supreme Court will use to make a determination on this issue, we need to delve deeper into US law. In some ways the matter has been defined in the negative. In United States v. Wong Kim Ark (1898) the Supreme Court noted that children born on US soil, that are born to members of a hostile, occupational, army, are not US citizens by location of birth. Neither are children born to foreign diplomats working on US soil. This makes sense, in that persons in these circumstance are operating as instruments and agents of a foreign power. Their purpose on US soil is in the interest of another state, and their connection here is at behest of that state, so no birth to them by chance of being on US soil, should confer any automatic citizenship.
By statute, the Congress and President have added law which creates additional categories of automatic citizenship. When the US Constitution was drafted, the Indians and other aboriginals of the continent were considered a separate nation(s), so citizenship was not conferred. This was changed by Federal law in the course of our national historical progression. Federal law now states that persons born in the United States to members of Indian, Eskimo, Aleutian, or other aboriginal tribes; persons born outside of the United States of parents both of whom are citizens and one of whom has had a residence in the United States prior to the birth of such a person; and persons born outside of the United States where only one parent is a citizen and that parent has resided in the United States for one year. The applicable law reads as follows;
§ 1401. Nationals and citizens of United States at birth
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;
(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;
(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;
(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;
(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;
(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;
(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 service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of Title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 288 of Title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and
(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.
While this part of Federal law, The United States Code, goes far to define which persons have US citizenship by birthright, and the prior case law shows which persons are excluded automatic citizenship despite the geographic location of birth, neither precisely define the language in the US Constitution “natural born citizen”. The Supreme Court will be forced to make a decision about that precise definition. It seems likely that, in light of the number of Americans living and traveling overseas, both at work for the US government and for private purposes, the court will not define “natural born citizen” as requiring “birth on US soil”. They will reason that had that been the intention of the founders, such circumstance was foreseeable and knowable at that time, and the founders would have drawn that specific distinction with language, “born on US soil or sovereign territory”. It was imminently foreseeable that Benjamin Franklin, or Thomas Jefferson, or others who served as emissaries abroad, could have married, and had children while on foreign soil. So, it will likely be decided that “natural born citizen” means a person who is automatically granted citizenship by birthright, through parentage or circumstance of birth. If this is the decided definition, then Mr. Obama’s eligibility to serve as President would be determined by the United States Code definitions above. Specifically, subsection “G”. So if Mr. Obama’s mother had resided in the United States for at least two consecutive years after attaining age 14 (probably ages 15 through 17), then Mr. Obama would have automatically been a citizen through his mother.
All claims to prior common law cases, where it is claimed that both parents must have been born in the United States, hold nothing in common with United States law or the writings of the founders. These nativist ideas would have been well known to the founders, and were completely absent from the founding documents. In contrast, the founders were enjoying assistance from the nationals of many countries, French, Germans, and Dutch, to name some of the most noted, and were welcoming them to join the cause. In our early history, the United States desperately needed immigrants, to populate the wilderness and cause the young nation to reach a sufficient population density to sustain growth. There is no history of nativism in American law, rather our system has focused on recruiting citizens, who swear allegiance to abandon their prior ties, in order to uphold our principles. This was a known and noted contrast to most European countries of the day, which frequently had nativist language in their citizenship laws. The United States laws, in contrast, chose to be more inclusive than exclusive, as a matter of a long term policy of seeking immigration to populate the country and provide a much needed labor force.
Another argument that has been raised to exclude Mr. Obama’s citizenship eligibility has been that Mr. Obama renounced his citizenship when he was adopted by his mothers second husband, Mr. Sotero, an Indonesian citizen, who may have then claimed benefits of Indonesian citizenship for his adoptive son. However, the actions of his stepfather and mother will not be attributable to Mr. Obama, a minor at the time. In order to renounce citizenship, it seem likely he would have needed to do so on his own, after attaining an age of cognizance and responsibility, likely at least 18 year of age. By this age Mr. Obama was residing within the United States.
This analysis is strictly a projection of the likely course of the legal arguments to take place if Barack Hussein Obamas eligability is challenged in the United States Supreme court. To this author, it seems likely his presidency will be legally challenged, but confirmed by the United States Supreme Court. If, however, the Supreme Court does not follow this line of reasoning, and Mr. Obama is found unqualified for the Presidency, then the constitutional course of action is clear. Mr. Obama would be found to not, legally, be the President of the United States, while still in office, then Joseph Biden, the duly elected vice president would be made president. This would occur as in any circumstance by which the president-elect suddenly became unable to serve (either physically or legally). Examples could include death, debilitating injury or illness, or as in this case, the arrival of information indicating he is legally barred from assuming office. Mr. Biden would no doubt re-affirm all the positions taken by his predecessor, and no sweeping annulment of Mr. Obama’s actions in office would occur.
However, if the case came before the United States Supreme Court after the November election, and Mr. Romney were then president, it would leave a dilemma as to the legitimacy of anything signed during Mr. Obama’s term in office. However, to avoid such disruption, the United States Supreme Court would likely refuse to hear the case at that juncture, claiming that there is no longer a viable issue at hand, Mr. Obama is no longer President, and declare the matter moot. Where it would become interesting would be if a litigant were to file suit, claiming injury under an Obama law, order, or regulation, under the theory that an illegal presidents orders could not be enforced. Again however, the likely scenario would be that if pressed the court would simply acknowledge that the US constitutions definition of “natural born citizen”, comports with how “natural born citizen” is defined in every other part of United States immigration and citizenship laws. Even if born in Kenya to Stanley Ann Dunham and a foreign father, he is still, technically, a “natural born citizen”, even if poorly thought out jokes about “tasty dogs” make him seem otherwise.
