(CORRECTED on 01.11.16, in orange, seven years after I started this blog, and now that I know better.)
(CORRECTION: In this article, I write Electors must only vote for a President who is Constitutionally qualified for office. However, the Constitution does not require this; only laws enacted in the states can require their state Electors to vote only for the President who is Constitutionally eligible for the job.)
(UPDATE 07.01.10: In this article, I mention that John McCain was born on a military base in Panama. However,
I am not certain this is true. this is untrue. I also said that Larry Tribe concluded, Mr. McCain is a NBC, and provided a link to the NYT article which explained his reasoning. However, I wish to emphasize, as I have done in several subsequent articles and comments; Mr. Tribe did not say, McCain was born on a military base; or that, being born on the base would be dispositive as to whether he is a NBC. In fact, he only said, McCain’s parents worked on the base.)
To: Concerned Americans
From: Team jbjd
Subject: Find Out Whether Barack Obama is a Natural Born Citizen as Required under Article II of the U.S. Constitution and Stop the Electoral College from Voting for Him, if He Is Not
Date: December 1, 2008
By now, almost everyone paying attention to the election seems to know that under Article II of the U.S. Constitution, the President has to be a natural born citizen. But hardly anyone seems to know there is no provision in either federal or state law that says anyone, anywhere, has to check. That’s right. Nothing. Even so, voters in general have the right to express preference for a Presidential candidate without respect to qualifications for office. Of course, Electoral College voters must ensure he is at least Constitutionally eligible for the job.
Issue: Given that Article II of the U.S. Constitution says the President must be a natural born citizen, could Nancy Pelosi, Speaker of the U.S. House of Representatives and Chair of the 2008 Democratic National Convention have certified that Barack Obama was “duly nominated” as the Democratic Party’s candidate for POTUS; and could the Party chairs of the Democratic Party in all 50 states and the District of Columbia then have submitted his name to state officials, along with Ms. Pelosi’s certification, to be placed onto the general election ballots; and could state officials have placed his name on the ballot and then certified the final number of votes cast for him; and can he receive the requisite votes for POTUS from the Electoral College (“EC”) when it meets on December 15 and then on January 20, be sworn into office, all without being a natural born citizen?
Answer: Yes, absolutely; if the EC fails to stop him.
While the U.S. Constitution spells out in Article II that the President must be a natural born citizen – “natural born” and “citizen” are distinct qualifications – neither federal nor state law requires that any government actor must determine whether the candidate for POTUS satisfies these conditions. True, Ms. Pelosi’s signed a Certification of Nomination after the Democratic National Convention; but in this document, she only promised he is the Party’s nominee and not that he is Constitutionally eligible for the job. http://countusout.wordpress.com/2008/11/26/foia-request-response-from-va-document-from-va-sos-signed-by-nancy-pelosi-stating-that-pelosi-certified-obamas-qualifications/dnc-certification_of_nomination-082908-2/ (UPDATE 10.11.10: As I pointed out in several articles subsequent to this publication, since the DNC Rules require the nominee must be Constitutionally eligible for the job, this turns out to be a distinction without a difference.)
In fact, throughout the entire election process, only one opportunity is prescribed in writing to confirm the candidate’s eligibility: when the state in which the candidate seeks to get onto the general election ballot has enacted both a law that says any candidate seeking to get onto the ballot in that state has to satisfy the requirements of the office sought; AND a law that provides for challenging the candidate’s eligibility under state law.
For example, here is the requirement to get onto the general election ballot in the State of GA, under the Official Code of GA Annotated (O.C.G.A.), §21-2-5, Qualifications of candidates for federal and state office; determination of qualifications. “Every candidate for federal and state office who is certified by the state executive committee of a political party … shall meet the constitutional and statutory qualifications for holding the office being sought.” (Note: President, U.S. Senator, or U.S. Representative are federal offices.) This means that, according to GA law, when the state Party chair submits the Party nominee to the Secretary of State (“S of S”) to be put onto the general election ballot, that nominee must be eligible for the office sought. But there is no corresponding GA law that says the S of S receiving this paperwork from the state Party chair must verify this eligibility. Under that same law, the State of GA set up a mechanism by which voters may file a challenge with the S of S questioning the eligibility of a candidate to appear on the ballot; and for the S of S to initiate such a challenge on her own. “The Secretary of State upon his or her own motion may challenge the qualifications of any candidate at any time prior to the election of such candidate.” But again, the operative word here is “may.” In other words, even in a state like GA, one of the few states with laws that provide for a mechanism for voters to challenge a candidate’s eligibility to get onto the general election ballot, no law requires the state to investigate the candidate based on that challenge. (Notice that technically, even GA law does not confer power on the S of S to determine whether any candidate is eligible for the office sought but only to determine this: whether he is eligible by virtue of satisfying the requirements of the office sought to get onto the general election ballot.)
Documentary evidence establishes that Presidential candidate John McCain is a citizen.
At the time of his birth, both of his biological parents were U.S. citizens and had lived in the U.S. for the requisite years past the age of majority to pass on their citizenship to their newborn son. (Plus, there is no indication he was subsequently adopted by a foreign national of a country that disallowed dual citizenship, which condition could have ended his American citizenship.) As to the issue of whether he is “natural born”…, there is speculation both ways. He was born on a military base in the Panama Canal Zone, where his father, a member of the armed services, was stationed at that time. While then officially a part of the Country of Panama, the Zone was administered by the U.S. (NOTE: I have been unable to ascertain whether he was born in the Zone; or in the country. But this represents a distinction without a difference. Because at the time of his birth in 1936; the U.S. Code did not automatically confer U.S. citizenship at birth to those children born in either Panama or the Canal Zone, whether on a military base, to U.S. citizen parents. Instead, he was naturalized in 1937, less than a year after his birth, by Act of Congress. ) Whether this set of circumstances satisfies the requirement of “natural born” which the drafters had in mind when they wrote the Constitution has never undergone judicial scrutiny. (Constitutional scholar Professor Larry Tribe of Harvard Law School, an advisor to Senator Obama who appeared in the candidate’s first TV spot of the 2008 Presidential campaign, in IA, has concluded McCain is natural born.)
Some have charged that even if being born on the base would otherwise have made him a natural born citizen, he wasn’t actually born on the base but in another hospital outside of the U.S. Zone and so, while he is a citizen, he cannot be considered natural born. (As I just explained above; whether he was born in the Zone or the country has no bearing on the analysis of his status as NBC.) Confronted with these accusations, McCain voluntarily handed over his original long form birth certificate to Washington Post reporters whose investigation confirmed he had been born in the hospital on the base where his mother, still alive, said she gave birth.
On the other hand, nothing has been confirmed about the natural born status of Barack Obama.
As with John McCain, questions have also been raised as to whether Barack Obama is a natural born citizen. As previously stated, McCain responded to these questions by producing his long form birth certificate for the press, which investigators used to confirm his legal status. Here’s what Obama did last June to respond to questions as to his own eligibility: he posted on his web site, “Fight the Smears,” a copy of what his campaign called his “Birth Certificate,” which seemed to indicate he was born in HI. Further, they insisted this document put to rest once and for all questions as to whether he is a natural born citizen. In fact, it did no such thing.
Even assuming the document Obama posted is real; it is still not a “Birth Certificate,” anyway. Its title is “Certification of Live Birth.” (Yes; Annenberg Political FactCheck.org says it’s a real “Birth Certificate.” But keep in mind, Annenberg FactCheck is funded by the Annenberg Foundation, who employed Obama as the Chair of their Chicago Annenberg Challenge (“CAC”), selected by Bill Ayers for that position, where he doled out to community organizations the millions of dollars donated by the Foundation in a failed campaign to increase the test scores of Chicago public school students.) FYI, according to the government web site of the State of HI, officials there will accept a “Certificate of Live Birth” as primary evidence of, say, Hawaiian birth; but they will not accept a “Certification of Live Birth” without additional documentation.
Besides, even if it turns out Obama was born in HI, this does not resolve his natural born citizen status. What if he was adopted by Lolo Soetoro, the Indonesian national who married his mother; would that have made him a citizen of Indonesia? And, if he was a citizen of Indonesia, would this have terminated his status as a U.S. citizen? (Circumstantial evidence indicates at some point, Obama was a citizen of Indonesia. The AP printed a copy of his Indonesian grade school registration form, which listed his name as Barry Soetoro and his nationality as Indonesian. (His religion was listed as Islam). At that time, only Indonesian citizens could enroll in school. According to U.S. law, when it comes to dual citizenship, deference is given to the law of the foreign sovereign. This means that, if Indonesia did not recognize dual Indonesian/American citizenship at that time then, neither did the U.S. And Indonesia did not recognize dual citizenship. Also, regardless of the type of document his mother was able to obtain in HI to verify that, in fact, sometime within the past year, somewhere, this baby was born, alive; that original document would have been sealed when he was adopted by Mr. Soetoro, and a new document issued naming Lolo Soetoro as the birth father.)
Obama’s personal narrative includes the story that his mother left Indonesia and brought him back to HI at age 10 to live with her parents. Assuming at that time he passed through U.S. Immigration and Nationalization, he then became a naturalized citizen. Of course, naturalized citizens do not qualify for the job of POTUS. If he never passed through Customs, he could be an undocumented alien. (His personal narrative also includes the story that he traveled to Pakistan for 3 weeks while in college. Seeing the passport he used to re-enter the country might clear up the mystery of his citizenship once and for all.)
Of course, if he was born in Kenya – a paternal grandmother in Kenya claims to have been present at his birth there – then at no time would he have been a natural born citizen, since his mother had not satisfied the U.S. residency requirements after attaining the age of majority, to automatically pass on her citizenship status to her son.
Then there is this entry from FactCheck.org on Obama’s web site, “Fight the Smears.”
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. That same act governed the status of Obama Sr.‘s children.
Several researchers have concluded that regardless of any other considerations, the clear language and intention of the founders/drafters of the Constitution means, this ‘dual sovereign allegiance at birth’ kills any eligibility for POTUS under Article II. (Notwithstanding his pronouncement that McCain is eligible for POTUS; Professor Tribe has remained silent as to the eligibility status of his candidate, Obama.)
Bottom line, just because the Democratic Party nominated Barack Obama as their candidate for President; and just because the state chairs of the Democratic Party in all 50 states and the District of Columbia submitted his name to be placed on the general election ballot; and despite the fact that state officials in all 50 states and the District allowed his name onto the ballot and millions of voters cast their votes for him, this does not mean he is eligible to be President.
Of course, he is not the President; indeed, he is not even the President-elect.
Once the results of the state elections are certified by the appropriate state authorities in each state, the next step in the process of choosing a President is the vote by the Electoral College (“EC”) on December 15. And like every other deliberative body involved with this election, the EC is not legally obligated to determine the candidate’s eligibility, either. Under the United States Constitution and federal law, the electors may cast their votes for anyone they want. However, under the laws of a number of states, the electors in those states must pledge to cast their votes for the candidate who won the state’s Presidential election. And some states have enacted laws that require electors to honor their pledges or their parties. Yet, in the history of the EC, no “faithless elector” has ever been punished for voting for someone other than the Party candidate. But since electors are generally chosen by their respective Party based on criteria like Party loyalty and years of service, they rarely go against the will of the Party. On the other hand, the Presidential electors in each state are presumed to honor the conditions laid out in the U.S. Constitution.
So, what would happen if the EC voted for him and then his ineligibility is confirmed? Under the 20th Amendment to the U.S. Constitution, the worst that would happen is that Vice President Elect Joe Biden would be sworn in as President on January 20. Then, he would choose a VP of his own, subject to Congressional approval. (Note 01.08.11: this scenario presumes, Congress makes clear, it will not Certify the vote of the Electors based on the fact, they elected an ineligible President. Please see expanded analysis in QUALIFIED ≠ ELIGIBLE.) Of course, if EC voters receive information before December 15 that Obama is ineligible for the job, pledged or not, it is unimaginable they would still cast their votes for him. Only, how are they ever going to get this information?
Several citizens have already filed lawsuits in both federal and state court to address the issue of whether Barack Obama satisfies the Article II requirement that the President must be a natural born citizen. The stated goal in several of these suits is to get the court to compel state officials – usually, the S of S – to vet the candidate as to eligibility, by arguing such vetting is a requirement of the job. That is, having sworn an oath to uphold the Constitution these state officials must verify the candidate’s eligibility. However, while some state laws explicitly require the political party to submit only the names of eligible candidates for inclusion on the state’s general election ballot; as previously stated in this memo, no state law requires a state official to confirm the eligibility of the candidate the major political party submits. As such, most judges have already dismissed these suits, ruling that the nexus between swearing to uphold the Constitution and having to investigate a candidate’s eligibility for POTUS is too attenuated for the court to compel the specific performance sought in the suit.
Some of the lawsuits filed in state courts have also been dismissed for lack of standing. That is, the Plaintiff lacked the particularized interest in the case of, say, another candidate on the general election ballot. Able to circumvent this barrier to standing, Alan Keyes, former U.S. Ambassador to the U.N. under President Reagan and candidate for POTUS under the American Independent Party filed a suit in CA attempting to prevent the Secretary of State from submitting California’s 55 electoral votes until Obama provides proof of his US citizenship.
The petition filed in August by Plaintiff Phil Berg, Attorney, in federal district court in PA is different. He asked the court merely to Declare whether Obama is a natural born citizen based on several documents he asked the court to order Obama to produce. He named as Defendants Obama, the DNC, and the FEC.
In Opposition to Berg’s Motion, Defendant Obama, joined by the DNC, insisted he does not have to produce evidence he is a natural born citizen. He pointed out that Mr. Berg is just one of millions of voters with no special interest in whether he is eligible. That is, as an individual citizen, he lacked standing to bring this action in the first place. Thus, under Article III of the U.S. Constitution, he had failed to present a “case or controversy” for consideration by the federal court. Justice Surrick agreed, granting Defendants’ Joint Motion to Dismiss. It is this ruling against Plaintiff’s Motion for Declarative Judgment on the basis he lacks standing that Berg has appealed up to the Supreme Court of the United States (“SCOTUS”), asking for Certiorari, meaning, an agreement to review the case. The SCOTUS has given Obama until December 1, 2008 to submit his arguments against Berg’s request for cert. But even if the court grants cert. AND rules in Berg’s favor on the issue of standing; the case will then be thrown back to the trial court for a new hearing, which could stall on deliberations over other procedural issues, without reaching the substantive issue of Obama’s eligibility for POTUS. In the meantime, the EC vote will already have taken place. Since they – like you – have no conclusive evidence Obama is not a natural born citizen, without demanding such proof, their vote for him is a fait accompli.
So, other than the EC, can anyone else prevent this from happening? Yes. You. You can bring the court case that will survive the challenge from Obama, the Plaintiff lacks standing.
Issue: Given that the President functions as Commander in Chief (“CIC”) of the armed services under the U.S. Constitution; that the CIC is authorized to order members of the armed services, including the national guard, into combat duty; that while serving combat duty such combatants may logically be required to inflict casualties on the enemy; and that causing the death of another under the color of law but not the rule of law could subject that combatant to criminal charges of murder and, on conviction, to execution for his crime; does a member of the military or national guard, currently deployed in or scheduled for deployment to a combat situation, have the particularized standing required by the federal court so as to create a case or controversy under Article III of the U.S. Constitution to successfully petition the federal court to examine whether Barack Obama is a natural born citizen and rule on his eligibility to be POTUS?
The elements that would establish standing in federal court, and which Judge Surrick found missing in the Berg case; would be present in a case where the nexus between the injury that would likely result if Obama is not a natural born citizen is more direct. For example, if Obama is not a natural born citizen then he is legally ineligible to be POTUS. And that means any orders he issues under the color of law of POTUS lack the real authority of law. Commanding troops to go into combat where they will likely inflict casualties on the enemy, if illegal, thus exposes soldiers to the death penalty under the Uniform Code of Military Justice, merely for doing what they believed was their job. (Conversely, under the Code, questioning the legitimacy of the President to hold this position once he is in office subjects soldiers to discipline under “Contempt for Officials.”) This nexus between Obama’s ineligibility and the likely harm that would result establishes standing, in the eyes of the law.
Mr. Obama also pointed out to the court that alleging a violation of Article II “fails to state a claim for which relief can be granted because it fails to establish a cause of action.” Mr. Berg justified his presence before the court by citing the Declaratory Judgment Act. But as Obama successfully argued, this Act only affords a procedural remedy to an underlying cause of action. Thus, “a court must find an independent basis for jurisdiction.” And there is no federal cause of action under Article II. But he was wrong.
There certainly is a cause of action under 42 U.S.C. §1983 for soldiers who would be compelled to engage in conduct that could result in execution, deprived of due process of law because their Commander in Chief is ineligible for office.
42 U.S.C. §1983 states
Every person who, under color of any statute, ordinance, regulation, custom or
usage of any State . . . , subjects, or causes to be subjected, any citizen of the
United States or any other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law …. “In order to bring action under §1983, one must allege that defendant violated plaintiff‘s constitutional rights and the deprivation must have been committed by a person acting under color of state law. Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3rd Cir. 1994). Under the definition of acting under state law, the defendant in a §1983 action must have exercised power ”possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.“ West v. Atkins, 487 U.S. 42, 49 ( 1988 ) (quoting U.S. v. Classic, 313 U.S. 299, 326 (1941)).
And there’s a cause of action under that same law for all of the families of all of those members of the armed forces, including National Guard members who would be deprived of their loved ones under such a scheme.
The most obvious “person” subjecting Plaintiff(s) to this unlawful “deprivation” in a §1983 suit is the S of S in Plaintiff’s state. But Defendants could also include Barack Obama; Nancy Pelosi; the DNC; and the state Party chair, since all of these people were inextricably bound up in the governmental function of carrying out the election to be deemed state actors in this enterprise.
In conclusion, no one has verified candidate for POTUS Barack Obama is a natural born citizen as required by the U.S. Constitution, notwithstanding the EC is poised to cast their votes for him on December 15. Unless someone produces documentary evidence establishing he was born in Kenya, the only forum to conclusively decide his legal status lies in federal court. This means filing a suit that would survive a challenge to standing. Given the recent pronouncements by the court in the several cases pending, among the Plaintiffs who could establish standing necessary to force this inquiry are members of the military or National Guard scheduled for deployment or about to be scheduled for deployment to a combat zone; and members of their families.