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Yeah, Cruz is eligible

While I do not think that Congress can change the definition of “natural born citizen,” I do believe that they can change the status of individuals so that they meet the definition. I don’t see any qualitative difference between legislation adding a new state to the union (and thereby making new US citizens at birth) and Congress making citizens at birth through legislation under their naturalization powers. No one would argue that only people born in the 13 original states can be President, so why should they argue that only people born under the English Common Law provisions governing citizenship in 1789 can be President?

I should point out that the Constitution does not define “natural born citizen.” One has to look elsewhere for the definition. For a definition, I look to the first Congress, who in 1790 by legislation made certain persons natural born citizens who were not natural born citizens before. Those Congressmen, one of whom, James Madison, is recognized as the principal author of the Constitution, decided that they could by legislation create natural born citizens, and the former President of the Constitutional Convention George Washington signed that bill into law. I do not think that the actions of the First Congress and President Washington are easily dismissed, nor are arguments of carelessness on their part credible.

The clear implication of the 1790 Act (and the Oxford English Dictionary) is that to our founders “natural born citizen” meant “citizen at birth.” So the question that remains is whether the Constitution’s naturalization provision gives Congress the power to create citizens at birth (in contrast to the usual understanding of naturalization–making someone a citizen after birth). The Congress has and does create citizens at birth (even in some cases retroactively) and I don’t know of any challenge to them doing that. (Judge Alsup in Robinson v. Bowen even opined that a retroactive act of Congress made John McCain a natural born citizen.) I see no objection to Congress changing membership in the pool of natural born citizens, through its naturalization powers.

If one were to invoke the English Common Law as both defining the term “natural born subject” and limiting which persons meet the definition, then I would point them to the various British acts that create natural born subjects, as argument against that position. That is, in 1789 Americans had a contemporary example of British legislation that expanded the pool of natural born subjects. Or put another way, I think that saying that English Common Law defines membership in the class of natural born subjects is the same mistake as saying that Minor v. Happersett defines membership in the class of natural born citizens–confusing necessary with sufficient conditions.)

Since according to U. S. Law, Canadian-born Ted Cruz was a U. S. citizen at birth, then yeah, he’s eligible to run for President.

Jackson objection to be heard today in Illinois


Flash! All three objections were overruled today.

Michael D. Jackson filed a complaint with the Illinois State Board of Elections, one of three filed and scheduled for a hearing today (the others are Benjamin Freeman and Amanda Martin). I expected a flurry of post-nomination challenges at the state level, now that Barack Obama is officially the nominee of the Democratic Party. Various states impose tight limits on the timing of such challenges, and of course due to the short time between now and the November election, the hearing of challenges is expedited. Jackson’s hearing is scheduled for 10:30 am.

In the complaint Jackson argues that under Illinois law, he has legal standing to make a challenge to Barack Obama’s appearance on the ballot in Illinois. I was going to write that Jackson claims Obama is not eligible because of the foreign citizenship of his father, but I’m not sure he comes out and says this. He cites Minor v. Happersett and makes a point of showing that Barack Obama, Sr. was not a US Citizen. Jackson then goes on to discuss the Maricopa County Sheriff’s Office investigation (failing to note that the investigation was not done by the Sheriff’s Office, but by a volunteer auxiliary).

While Jackson alleges that Obama’s birth certificate is a fake, he never alleges that Barack Obama was born outside the United States. Indeed, he says that Barack Obama is not a natural born citizen, but nowhere I can find does he say why.

The only grounds that I can find that Jackson asserts is that Obama is only on the ballot because of a birth certificate he submitted earlier, and since that is a fake, he can’t be on the ballot. In most of the ballot challenges, Barack Obama has not submitted any documentation of his birthplace, but in the prior Jackson challenge, Obama’s attorney did submit a copy of the long form birth certificate along with their motion to strike the objection (which the Board of Elections did). The birth certificate was cited in the rejection of the prior challenge, the hearing officer stating that it establishes that Obama is eligible. However, there is no requirement for a birth certificate in Illinois, so I don’t think Jackson has alleged sufficient facts to make a case, even if what he said was true.

This is one of those odd cases where the birther undermines his own argument. The only legal evidence that Barack Obama’s father is the foreign student Barack Obama Sr. is the birth certificate, which Jackson claims is a fake. He wants the certificate true for the purpose of showing Obama has a foreign father, but false for the purpose of showing he was born in the United States. I say that assuming what I believe Jackson intends to be saying, even though he never actually connects any of his facts and assertions with why Obama isn’t a natural born citizen.

Jackson also asks that James Tenuto, the hearing examiner in Jackson’s previous election challenge, and board chairman William McGuffrage not participate. Jackson thinks McGuffrage is biased. You can read Tenuto’s recommendation in the previous Jackson objection here. Perhaps Jackson didn’t like one thing that Tenuto said about Jackson’s pleading in the prior objection, saying:

Said pleading is illogical, nonsensical and not worthy of consideration.

See what you think about the new one:

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Birther progress

We often focus on the 140 lawsuits that the birthers have lost as evidence that birthers are complete and utter failures; however, I would like to look at it another way and highlight the progress the birthers have made.

Initially birthers had doubts about where Barack Obama was born, the lack of precedent precisely defining “natural born citizen,” and questions about whose responsibility it is to verify a President’s eligibility. In these core areas, I think the birthers have made a lot of progress.

First, because of birthers, we now have Barack Obama’s birth certificates in the public record, and iron-clad verification of their validity from the State of Hawaii residing today on the Arizona Secretary of State’s web site. The first area of doubt has been resolved fully. That’s a win for the birthers.

The second point still lacks a simple declaratory statement from the US Supreme Court, but precedent is building up at the state level, and the federal district court level, at least so far as the citizenship of persons like Barack Obama is concerned. We have several cases that say that those born in the country, whether of citizen or alien parents, are natural born citizens, and eligible to run for President, and the courts have straightened out the birther misreading of Minor v. Happersett.

Finally I see precedent building in the courts that the eligibility of presidential candidates is not the responsibility of the states, nor the courts during the election process. It seems to me a tremendous stroke of bad luck that birthers have not been able to adjudicate eligibility in state court. If the Florida statute had been written differently, someone might have been able to raise a challenge to the preference primary, or if New Jersey had required presidential candidates to file an affirmative statement of eligibility, someone might have had a shot at adjudicating the birther question there. But as it is, the combination of law and standing have not come together and because of that we haven’t gotten much precedent as to whether state cases like this are allowed by the Constitution. Still, we begin to see the courts defining the legitimate process for vetting eligibility. I wrote about this topic in more detail in:

but the short version is that it appears that states may not regulate who political parties run for President. It is the Electoral College and the Congress who provide the final check that the President is eligible. It remains an open question whether an objection to the action of Congress is judiciable, and it will likely remain an open question for this election cycle since only a major party’s losing candidate (or perhaps the Attorney General) would have standing to sue and I can’t imagine any doing that.

So really the birthers have won. They now know Barack Obama was born in Hawaii; they know that the children of aliens born in the United States are eligible to the Presidency, and they know that the Congress is there to make sure nothing goes wrong. It was a long an torturous road, but they have arrived and to borrow a phrase from Professor Dumbledore in Harry Potter and the Sorcerer’s Stone:

Well done, birthers. Well done.

There are some birthers, I should add, that don’t seem to be ready to celebrate their success, perhaps because they find happiness in the race itself. The anti-birthers have won as well but have less to celebrate, having know the outcome all along.

Why Minor v. Happersett doesn’t define “natural born citizen” for the children of aliens

Judges and legal scholars alike say the birthers misread Minor v. Happersett as containing the definition of “natural born citizen.” A legal brief submitted by an Obama attorney1 puts it succinctly:

contrary to the Plaintiff’s characterization, Minor did not exclusively define “‘natural-born” citizen’ as ‘all children born in a country of parents who were its citizens.'” Indeed, the court expressly left open the question of whether a child born to alien parents is a “natural born citizen” because it was not necessary to the disposition of the case.

The  problem birthers have understanding this is that they think the court defined “natural born citizen” but left open the question of “citizenship.” This interpretation makes no sense in the context of the entire paragraph, but birthers are not big on understanding context when it goes against them.

So in order to assist birthers in comprehension, I present the following hypothetical court decision about “citizens at birth.” The text of my hypothetical will be identical to that in Minor v. Happersett, except that the phrase “natural-born citizen” is replaced by “citizen at birth .” Only two changes are made and these are noted with bold-faced type.

Constitution does not, in words, say who shall be citizens at birth. 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 citizens at birth, 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.

I think any one would see that in this hypothetical text, the court is not saying whether the children of aliens are citizens at birth or not. So if the form of the argument does not define “citizens at birth” then how could the same argument with the words “natural-born citizen” say whether the children of aliens are “natural-born citizens” either. In fact, the dictionary definition of “natural born” means “Having a specified position or character by birth” (Oxford English Dictionary, 1971 ed.) so I really haven’t changed anything.

In fact, this definition is that given by Minor itself earlier in the text:

Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that ‘no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,’ and that Congress shall have power ‘to establish a uniform rule of naturalization.’Thus new citizens may be born or they may be created by naturalization.

Therefore, a natural born citizen is any one born a citizen (i.e., not naturalized). This definition is 100% contextually consistent throughout the entire decision.

1Mark Herron, Stephen Rosenthal in Voeltz v. Obama


imageI have a policy of trying not to get into long arguments in emails. There are around 24,000 visitors a month here, and it wouldn’t be practical to correspond with a significant number of them. That’s what the web site is for.

I violated my policy today when I got this email:

Contact: The only way any part of our Constitution may be changed is by the well established amendment process.  Article II, Title I containing the major requirement to be a candidate for president or vice president “shall be a Natural Born Citizen”.   Article II has never been amended.  Congress cannot circumvent any part of our Constitution by legislation; it can only be done by amendment.  A search of Supreme Court Cases, the Federalist Papers, and historical papers of our founding fathers also validate their collective intent with respect to “Natural Born Citizen” will give one the meaning of Natural Born Citizen.  In simple terms a candidate for president or vice president must have been born to a mother and a father who are themselves US citizens.  Exceptions to this requirement were made to some previous presidents by “grandfathering”.  Since our founding, all other presidents except Chester Arthur and Barack H. Obama, Jr. have met the requirements of Article II, Title I.  Arthur’s fraud was not exposed till some time after his death.  Turns out that his mother was a US Citizen but his father was a Canadian citizen at Chester Arthur’s birth.  Barack H. Obama, Jr. has Chester Arthur’s problem, his father Barack H. Obama, Sr. a visiting college student for education purposes, and held citizenship his entire life as a citizen of Kenya.

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Leo Donofrio, then and now

It appears that Leo Donofrio has once again left the building. According to a comment on his blog, he has given up his license to practice law and moved on. Nevertheless, his legacy lives on in the minds of those Americans who now believe in the legal theory Donofrio invented in 2008, namely that US Presidents must be born in the United States to two citizen parents.

Thanks to the Internet Wayback Machine, we can look at early writings from Leo Donofrio. This one from December 19, 2008, caught my eye:

And so, as is so very clearly established by the supreme court in Minor and Wong Kim Ark1, there are now, and have always been, doubts about whether people born in the US to foreign parents are “natural born citizens”, or, as the Court in Minor discussed, whether such persons are even “citizens”.

To emphasize that, Donofrio graphically illustrated his point:

Scotus in "Wong Kim Ark" and "Minor V. Happersett" rightfully punted on "Natural born citizen" - Current Court purposely fumbled

Look at the headline: “SCOTUS … in ‘Minor v. Happersett’ … punted on ‘Natural Born Citizen.’”

Compare this to his 2012 Amicus brief  filed in Farrar v. Obama in Georgia, which birthers are filing with their ballot challenges today:

President Obama is not a natural-born citizen of the United States, as defined by the United States Supreme Court in Minor v. Happersett, 88 U.S. 162 (1874), wherein the Court identified, as natural-born citizens, only those who are born in the United States of citizen parents.

Mr. Donofrio clearly understood Minor v. Happersett in 2008. How did a doubt become an emphatic denial? How did “punted” become “defined?” Minor v. Happersett hasn’t changed. Donofrio didn’t go back to law school. What happened?

I’m trying to give up negative speculation about people for Lent.

1Given the willingness of courts (e.g. Georgia, Indiana and Virginia) to cite US v. Wong supporting Obama’s eligibility as President, I think that Donofrio is wrong here when he says that this case acknowledges ongoing doubt. In fact, it removed those doubts.