WHAT IF?

In light of the lawsuit that was filed in Federal court, by a democratic former Deputy Attorney General in Pennsylvania, which alleged Barak Hussein Obama was not born in the United States, but rather a hospital in Kenya, the legal situation bears examining. What if Senator Barak 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, the purpose of the following article is not to deal with the veracity of that document, or even the consequences if that document were to be proven false. This is merely an analysis of the ramifications if Senator Obama was indeed born in Kenya, leaving all other collateral matters aside.

The following analysis presupposes that the allegation in the lawsuit is true, and Mr. Obama was born in Kenya, son to a US Citizen and a foreign national. The aim is to examine the possible likely outcomes of such a circumstance, were he to win the presidential election. If he loses to Senator John McCain, the point becomes legally moot (though some might argue the import of the very attempt by the Democratic party to bring about such a crises through their offering of this candidate).

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. If, however, he is elected in the general election, the matter becomes paramount. The challenge to his ascension to the office would likely start immediately upon the announcement of the election results. The matter would likely be removed from lower Federal Court, to the United States Supreme Court, 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 citzens of the United States and of the State in which they reside.....

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 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 laws show 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.

Some may argue that Mr. Obama renounced his citizenship when he was adopted by his mother 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 Barak Hussein Obama is elected president of the United States. 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 Senator Obama is found unqualified for the Presidency, then the Constitutional course of action is clear. Senator Obama would be found to not, legally, be the president of the United States, and Senator 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. This could become very difficult indeed if Mr. Biden objected to the Supreme Courts ruling, and refused to assume office. In this case, it is likely that Ms. Pelosi, the next in the line of succession would also refuse to assume office. The majority leader of the Senate, also a Democrat, at this point, would also feel compelled to refuse to assume office. The next in the line of succession would be a minority leader, a Republican, who may very well claim the mantle of President of the United States. Here lies a path to Civil War.

In truth, there may be multifarious paths to national political collapse in this election. Mr. Obama, with a unique background among candidates for the presidency in the history of the nation, compounds this difficulty by being an ideologically polarizing figure. His own written statements, such as "if push comes to shove, I will stand with the Muslims", and his long associations with public figures whose positions are inimical to the US and its interests, compounds the problem of his relative "alienness". The fact that he is the first person of African or "black" lineage to come so close to ascending to the presidency, has created an understandable excitement in the 12% of the American population that self identify as "black". If his ascension is prevented by the legal rulings of a court, based on the US Constitution, it is unlikely that his devoted fans will simply understand and accept that outcome as a mere function of the law. Even it Mr. Biden were to assume the Presidency, it seem likely that this will be unacceptable to a significant percentage of the population. In contrast, if the US Supreme Court follows the line of reasoning above, and confirms Mr. Obama as legally the President, this will do nothing to allay the fears and doubts of the many Americans who will believe him to be a foreign usurper. Nothing bodes well for a presidency that begins on such shaky ground. He can not expect the "sullen resignation" that characterized the opponents of Mr. Bush after Bush v. Gore, because, though they may have disagreed utterly with him or his policies, no one cast doubt that he was actually one hundred percent American. The fact that the country survived his fathers presidency, kept the country in an accepting, even if frustrated, mood. Mr. Obama cannot expect the same tolerance.

David Roth
October 27, 2008

Posted October 27, 2008 01:19 PM
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