Supremes asked: Who is ‘natural born citizen?’
July 14, 2012 by Jack Blood
Filed under Americas
Decision whether Georgia case will be accepted expected in fall
An announcement is expected sometime in the fall on whether the U.S. Supreme Court will decide just exactly who is a “natural born citizen” as required by the U.S. Constitution for all those who would be president.
Officials with the Liberty Legal Foundation confirmed they have filed an appeal of the ruling from the state Supreme Court in Georgia, and a decision by the nation’s highest court on whether it will accept the case is expected over the coming months.
It raises two questions, including whether states can be forced to accept any candidate from a political party for presentation on state ballots even when the candidates do not meet the required qualifications.
The other is the key, “Are all individuals born on U.S. soil Article II ‘natural born citizens,’ regardless of the citizenship of their parents?”
According to a statement from Van Irion, chief of Liberty Legal, the case that stems from a Georgia dispute “is the first to present the U.S. Supreme Court with a substantive ruling on the definition of natural born citizen under the Constitution.”
“All other cases to reach the Supreme Court on this issue had been dismissed on purely procedural grounds. Liberty Legal Foundation’s case is an appeal from the Georgia courts’ substantive ruling,” he explained. “The Georgia courts refused to dismiss our case based upon procedural grounds. The Georgia courts reached the substantive issue, what is a natural born citizen.
“They ruled incorrectly, but that ruling does allow us to ask the U.S. Supreme Court to address the definition of natural born citizen, instead of simply addressing a procedural issue,” the explanation said.
“Now the U.S. Supreme Court has an opportunity to address the definition of natural born citizen, our substantive issue.”
“The petitioners’ challenge in Georgia state court was based upon an uncontested fact: that the respondent’s father was not a U.S. citizen; and upon the legal conclusion that a person must have two U.S. citizen parents to be a natural born citizen under Article II of the U.S. Constitution,” the brief to the high court explains. “The Georgia Office of State Administrative Hearings and Secretary of State ruled that any person born on U.S. soil is a ‘natural born citizen’ as that term is use[d] in Article II of the U.S. Constitution, regardless of the citizenship of the person’s parents.”
But the brief argues that conclusion turns states’ rights on their head, because it would allow a political party to demand anyone be on a state election ballot, regardless of what the election code might require.
In Georgia, the law requires, “Every candidate for federal and state office … shall meet the constitutional and statutory qualifications for holding the office being sought.”
But the state’s ability to require candidates be qualified is separate from the right of political parties to choose their own candidates, the case argues.
“The right to associate easily coexists with the state’s right to determine the manner of choosing its presidential electors,” the brief argues. “Georgia code does not interfere with the autonomy of any political party’s internal decision making because it does not prohibit the parties from submitting any name…
“The political parties are free to submit Saddam Hussein or Mickey Mouse… However, Georgia is not required to accept such submissions and waste taxpayer money on ballots for such candidates.”
Under the state rulings, “the political parties could choose to list former Presidents George Bush and Bill Clinton as candidates for the presidential primary, despite the fact that both President Bush and President Clinton are disqualified to run for that office gain by the 22nd Amendment. … Upon such listing the state of Georgia would have no choice but to place these candidates’ names on its ballots.”
The brief also argues the key question about just exactly who is a “natural born citizen,” which not only could impact the Obama campaign but undoubtedly campaigns of future candidates.
The state decision did not follow the U.S. Supreme Court’s “Minor” definition of natural-born citizen, which is “binding precedent because the court’s definition was necessary to reach its holding. … Unless and until this court revisits this issue, the Minor court’s definition is binding.”
That ruling said a “natural born citizen” was the product of two citizen parents, under which Obama would be disqualified because of his father’s status as a foreign national visiting the U.S. as a student.
The high court in Minor said, “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.”
The case was brought on behalf of David Welden, Carl Swensson and Kevin Richard Powell. Handling it are Irion of Liberty Legal Foundation and Mark Hatfield of Waycross, Ga.
Officials with the Article 2 SuperPAC, who have been involved the case, said it originated when the plaintiffs challenged Obama’s candidacy on the ballot before Michael Malihi, an administrative judge who decided without evidence from Obama or his lawyer that he was eligible for the office and his name could appear on the Georgia ballot in 2012.
At the hearing level, Malihi simply threw out all of the evidence and ruled in favor of Obama, who, along with his lawyer, snubbed the hearing and refused to appear at all.
An intermediate court followed suit. Then the state Supreme Court dodged the question.
The plaintiffs had argued before Malihi regarding Obama’s alleged failure to qualify as a “natural-born citizen” as required by the U.S. Constitution for presidents. Obama has admitted in his writings his father never was a U.S. citizen, and attorneys argued that the understanding of the Founders, and a subsequent Supreme Court ruling, defines natural-born citizen as the offspring of two citizens of the country at the time of the birth.
Malihi had been charged with responding to the complaints brought over Obama’s candidacy under a state law that requires “every candidate for federal” office who is certified by the state executive committees of a political party or who files a notice of candidacy “shall meet the constitutional and statutory qualifications for holding the office being sought.”
Of all the eligibility cases to be submitted to the U.S. Supreme Court, the justices have refused to consider any.
In fact, one justice admitted the court is “avoiding” the Obama issue. Justice Clarence Thomas appeared before a U.S. House subcommittee when the issue arose.
Subcommittee Chairman Rep. Jose Serrano, D-N.Y., raised the issue amid a discussion on racial diversity in the judiciary.
“I’m still waiting for the [court decision] on whether or not a Puerto Rican can run for president of the United States,” said Serrano, who was born in the island territory. “That’s another issue.”
Yet after Serrano questioned him on whether or not the land’s highest court would be well-served by a justice who had never been a judge, Thomas not only answered in the affirmative but also hinted that Serrano would be better off seeking a seat in the Supreme Court than a chair in the Oval Office.
“I’m glad to hear that you don’t think there has to be a judge on the court,” said Serrano, “because I’m not a judge; I’ve never been a judge.”
“And you don’t have to be born in the United States,” said Thomas, referring to the Constitution, which requires the president to be a natural-born citizen but has no such requirement for a Supreme Court justice, “so you never have to answer that question.”
“Oh really?” asked Serrano. “So you haven’t answered the one about whether I can serve as president, but you answer this one?”
“We’re evading that one,” answered Thomas, referring to questions of presidential eligibility and prompting laughter in the chamber. “We’re giving you another option.”
The video:
BTW, Serrano, who was born in Puerto Rico, was asking whether that would affect his Natural Born status. Serrano was born in the USA and his parents were also born in the USA, all in Puerto Rico.
But Puerto Rico is what is known as an “unincorporated territory”–which are somewhat different under law than the states that were formerly territories. They were simply US territories, but Puerto Rico is considered “unincorporated”–which you can look up–but one reason is that Puerto Rico is still capable of getting independence, as the Philippines did.
Are people born in Puerto Rico Natural Born citizens? I think that they are. Are people born of Puerto Rican parents Natural Born citizens. I think that they are. But the fact that Puerto Rico is an unincorporated territory is the reason for the question.
Turning to the simple question of whether people born in the USA are Natural Born regardless of the citizenship of their parents, the answer is that they are. The meaning of Natural Born comes from the common law, not from Vattel, and it refers to the place of birth, not the parents.
There is no evidence that the writers of the US Constitution followed the Vattel definition. Yes, they did read Vattel. But then they read a lot of other things too. Vattel is not even mentioned once in the Federalist Papers, while the common law is mentioned about twenty times.
The US Supreme Court ruled in the Wong Kim Ark case (which BTW was AFTER the Minor vs Happersett case and hence would have overturned it if Minor vs Happersett was actually a decision on the matter) that the meaning of Natural Born comes from the common law and refers to the place of birth, and that every child born in the USA except for the children of foreign diplomats is Natural Born.
“It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.”
That is why Edwin Meese, Ronald Reagan’s attorney general, had this in his book:
“Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are “natural born citizens” and eligible to be President. Much less certain, however, is whether children born abroad of United States citizens are “natural born citizens” eligible to serve as President …”—- Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005) [Edwin Meese was Ronald Reagan’s attorney general, and the Heritage Foundation is a well-known Conservative organization.]
BTW. the fact that Obama was born a dual citizen is totally irrelevant. And, several presidents have been dual citizens when they served as president (Jefferson and Madison had been made French citizens) or at birth (Woodrow Wilson British, and Eisenhower German–due to old German laws that made the grandchildren of its citizens German at birth).