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Why the disconnect on “natural born citizen”?

There are polar opposite views on what the phrase “natural born citizen” in the Constitution means. One pole is the legal community and the other the birthers. How can reasonable people come to such different opinions?

Obviously one answer is that the birther side isn’t being reasonable; however, there is a little more to it. The fact of the matter is that our country has not always been of one mind on citizenship, and that there have been periodic bouts of anti-immigration sentiment in the population, sentiment reflected in the statements of politicians and sometimes in the courts and occasionally in statutes (like the Chinese Exclusion Act). Like it or not, the Dred Scott decision was the law of the land until it was supplanted by the 14th Amendment, no matter how bizarre and racist its conclusions sound today.

I was digging through some bookmarks last week and re-discovered a 2006 Congressional Research Service report, “U.S. Citizenship of Persons Born in the United States to Alien Parents.” I found the report valuable in understanding the historical context. They wrote on page 4 (footnotes omitted):

Although the English common law at the time of the adoption of the Constitution considered a person born in the English dominions to alien parents to be an English citizen unless those alien parents fit into the exceptions described above, and although American law apparently generally accepted this position, there nevertheless appeared to be some uncertainty as to whether persons born in the United States to alien parents were, in fact, citizens of the United States. Some scholars ascribe this uncertainty to the desire of Americans to embrace both a “consensualist” doctrine of citizenship, by which a person and a government consent to be mutually obligated, and an “ascriptive” doctrine by which a person is ascribed citizenship by virtue of circumstances beyond his control, such as birth within a particular territory or birth to parents with a particular citizenship.

It is the general view of the legal community that this issue was put to rest by the US Supreme Court in the 1898 case of US v. Wong. But even the Wong decision was split 6-2.

Given that confirmation bias leads us to select those authorities and citations that confirm what we already believe, it should be no surprise that in the midst of a wealth of conflicted history, each side could find things to make the case that suits them. The fact that the birthers always lose in court should inform us on which side has the stronger argument.

Confidence v. No Confidence

It looks like we’re on the “confidence” theme this week. I admit that I came down pretty hard on Paul Vallely in my article, “Former general confuses US with UK,”  mocking his call for a vote of “no confidence” on President Obama in the House of Representatives. Granted, I correctly noted that such a vote has no legal significance, but I did not fairly label it what it really is, a political ploy. (The idea that a vote by a majority of the Republican-controlled House would result in an Obama resignation is  ludicrous.) In this country, the political party in power governs, and the opposition tries to get them out. And those out of power in Washington today use every trick they can to make the Obama Administration look bad, and this “vote of no confidence” scheme should be viewed as what it is, politics.

One of the reasons that I wanted to back off a little on the current “no confidence” move is that it is not just something that right-wing nut jobs cooked up in their anti-Obama program. The other side tried the same gambit when it was the Bush administration in power. Turn the clock back to May of 2007 and read this from Think Progress:

Last week, Sens. Dianne Feinstein (D-CA) and Charles Schumer (D-NY) called on the Senate to hold a no-confidence vote on Attorney General Alberto Gonzales.

The White House and its conservative allies quickly derided the vote, calling it “nothing more than a meaningless political act.” This morning on Fox News Sunday, Sen. Lindsey Graham (R-SC) called it a “gotcha game.”

So what happened with that move? A resolution of no confidence was introduced, but even though  53 Senators voted to debate the issue (38 opposed), it fell shy of the 60-vote supermajority necessary to fend off a Republican filibuster. Although the “no confidence” vote was not held, Gonzalez did resign (for more on this controversial figure, check out the Wikipedia).

Folks like me on the Internet try to get good information, but we don’t govern the country, or try legal cases. If I make a mistake, the only consequence is a little hit on my credibility. When it comes to members of Congress, they have to make real decisions that affect real people, and their standard of correctness must needs be far higher than mine. When Congress needs a legal opinion, they may seek guidance from the Congressional Research Service, an arm of the Library of Congress, and that’s exactly what some did in 2007 regarding the “no confidence” question, resulting in the production of this report: “No Confidence” Votes and Other Forms of Congressional Censure of Public Officials from June of 2007.

The report concludes (in part):

Aside from obvious symbolic, political or publicity implications, there are no specific legal consequences in the passage of such a resolution, nor is there any legal significance or consequence for the Senate or the House to choose one phrase of disapprobation or condemnation over another, or to include or not to include the concept or expression of a loss of “confidence” in an official.

The report is of particular interest in its tabulation of historical resolutions of this type, going back to 1973.

Failure to qualify

Over the past few months, I have read quite a bit of material from the birther side, including various lawsuits and challenges attempting to keep Barack Obama from the ballot in 2012. There are two recurring themes in this material: first an assertion that candidates for President and Vice President are obligated to prove their eligibility prior to running for office and that state officials are obligated to verify the eligibility of candidates before they are allowed to run for office.

Does the Constitution imply that a candidate or a state official has such an obligation? I am intrigued with the peculiar language of the 20th Amendment to the Constitution that says, in part (emphasis mine):

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

My reading of the Amendment suggests that Congress (who proposed the Amendment) anticipated that unqualified persons could be the President elect and Vice President elect, and from that I would infer that they understood that anyone, qualified or not, can run for and be elected President of the United States; but that should an unqualified person be elected, Congress would decide who would assume office.

The Congressional Research Service Report: “Presidential and Vice Presidential Succession: Overview and Current Legislation” (September 27, 2004) touches on the topic in Footnote 49:

The question of “failure to qualify” relates generally to the presidential election process. In theory, it could mean that neither of the persons winning a majority of electoral votes for President and Vice President meets the constitutional qualifications of the two offices, i.e., natural born citizenship, 35 years of age, and14 years of continual residence in the United States, but this contingency is extremely unlikely.

The U. S. Constitution does not assume that issues of eligibility will be conclusively dealt with before the election. For this reason, I think that all Constitutional arguments based on a pre-election obligation to prove or verify eligibility are non-starters.

One might extend this principle to say that state laws requiring proof or verification of candidates for President and Vice President are unconstitutional, but I am not convinced that this would be upheld by the courts.

Rules of Interpretation and Construction

I want to thank a commenter very early in this blog’s history for pointing me to the “No Points” video. I was reminded of one bit of it when reading Mario Apuzzo’s Brief in the Pennsylvania ballot challenge by Kerchner and Laudenslager. It goes:

Everyone in this room is dumber for having listened to it.

It was apparent that the Brief was not intended for the court – it was intended for the public. A good example of this is the section titled “Rules of Interpretation and Construction.” No judge needs to have interpretation and construction explained to him. Indeed there are no hard and fast “rules” of interpretation and construction1. There are general principles and maxims, but not rules (a lawyer told me that). Leo Donofrio, and now Mario Apuzzo have undertook to “reeducate” the public in their own unconventional methods of how laws are interpreted and constructed so as to make other parts of their unconventional arguments sound better.

No one with a legal education is going to buy any of this for a moment, and so I conclude that the Brief is not for the Court but is rather a publicity stunt in the guise of a lawsuit (as are many birther lawsuits).  After all, Kerchner is the same guy who takes out half-page advertisements in the Washington Times newspaper to sell his theories. This ballot challenge is just another marketing tool. Kerchner isn’t even eligible to file a real challenge in Pennsylvania according to Obama’s attorney.

Anyone who naively reads the Brief will be dumber for having listened to it.

However, no bait and switch with the article’s title this time. If you would like to learn about statutory interpretation, I can think of no better place to go than the Congressional Research Service’s report for use by the Congress that actually constructs those statutes. Here is the report: “Statutory Interpretation: General Principles and Recent Trends” (August 31, 2008) by Legislative Attorney Yule Kim of the American Law Division:

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New Congressional report on presidential eligibility

The Congressional Research Service has completed a new report on the question of what “natural born citizen” means in the context of the Article II qualifications for the President of the United States.

The Congressional Research Service is a part of the Library of Congress, providing professional, objective and non-partisan public policy research to members of Congress and their staffers. CRS reports by constitutional attorney Jack Maskell, the author of this report, have been featured on this web site before. I’m sure that my readers will be much more interested in what the report says than what I say about it, so without further introduction, the report is presented. I can anticipate a lively discussion to follow.

Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement

Report on birth certificates from the Congressional Research Service

The Congressional Research Service, a division of the Library of Congress, is the research arm of the United States Congress. CRS legislative attorney Jack Maskell wrote a previously unpublished report in March of 2010, titled Birth Certificates of Presidential Candidates and Standing to Challenge Eligibility. Maskell’s previous report, Qualifications for Office of President of the United States and Legal Challenges to the Eligibility of a Candidate, was featured on this blog last year.

Clearly members of Congress were getting letters from constituents. Once again we see good research and sound conclusions from a qualified attorney such as:

Since the officially certified document [Obama’s 2008 Certification of Live Birth] is prima facie evidence of United States birth and citizenship, and there appears to be no actual documentary evidence of any nature to the contrary, such certificate would most likely deemed conclusive of “natural born” citizenship by a state official or court if any such review were commenced or required.

I was interested to learn that Congress has in the past refused to count Electoral College votes for an ineligible presidential candidate. We also learn what had been conjectured before, that no state requires a birth certificate from a presidential candidate.

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