Friday News Flash: Obama Constitutionally Ineligible for Presidency! (Okay, Maybe Not)

by Peter Spiro

In a sign of increasing election-eve desperation on the Right, respectable Republicans (Andrew McCarthy, for one) appear now to be taking seriously the argument that Obama does not meet constitutional eligibility requirements for the presidency. A suit has been filed in Pennsylvania seeking declarative relief to that effect, on two grounds: 1) he was born not in Hawaii but rather in Kenya, and thus doesn’t qualify as a “natural born” citizen, and 2) Obama isn’t a citizen at all, having lost his nationality as a minor when his mother married an Indonesian national and moved to Indonesia, or, alternatively, having lost his citizenship upon adoption by his stepfather. (You can find the semi-literate complaint here.)

Dave Hoffman has the procedural details over at Concurring Opinions. As for the substance of the first claim, there is the small problem of pretty convincing documentation of Obama’s birth in Hawaii. (Check out the certificate itself — I didn’t know that it’s Barack Hussein Obama II, as in the Second — why not “junior”?) So the facts don’t support the claim. Even if Obama had been born in Kenya, he would have been a citizen at birth by statute. Though there might still be an argument against constitutional eligibility, I don’t think it’s a very strong one.

The second claim is nonsense. Although it was once the case that women lost their nationality upon marriage to a foreigner, that practice was eliminated under the Cable Act of 1922 and the Equal Nationality Act of 1934. Obama’s mother did not lose her citizenship by marrying a noncitizen; so neither did Obama. Nor would Obama have lost his US citizenship if he had been adopted by his Indonesian stepfather. Under section 349 of the Nationality Act, citizenship would have been lost by virtue of naturalization in another state only where the individual was over the age of 18.

Let’s remember who was actually born outside the United States. Anyone detect a pattern here?

http://opiniojuris.org/2008/10/24/friday-news-flash-obama-constitutionally-ineligible-for-presidency-okay-maybe-not/

8 Responses

  1. Before you go off half-cocked blaming desperate Republicans, it is worth noting that this lawsuit was filed months ago by Philip Berg, a Democrat. Berg is a Clinton-supporter who was pushing this story back in the primaries. He’s also a Truther.

    It’s downright shameful that you characterize McCarthy as “taking seriously” this lawsuit even though McCarthy writes “Admittedly, I’ve ignored this issue up until now…Has anyone around here looked into this? Is it a serious issue, and why does Obama seem to be so squirmy about it?” That’s not exactly solid support.

    I guess there’s a little bit of partisan hack in all of us, huh?

  2. Hmm.  McCarthy dedicates an entire post to the issue, recounts all of Berg’s  allegations, says he has ignored the issue “but this all seems very strange,” claims that the public evidence of Obama’s birth in Hawaii is “shaky,” raises the question of Obama’s citizenship, asks if anyone has taken a look at the issue, and says Obama is being “squirmy” about it.  Yet it’s “shameful” — your word — that Peter claims McCarthy is taking the issue seriously.  Really?  Who’s being partisan here?  Doesn’t seem like it’s Peter…

  3. Even if all the premises are true, all Obama would have had to do is reapply for citizenship.  If you are born of a U.S. citizen and you lose your citizenship or your foreign step-parent adopts you or your mother renounces your citizenship, whatever, all you have to do is reapply.  Lee Harvey Oswald did it after renouncing his citizenship and becoming a citizen of a rival communist country, for God’s sake.  It’s easy and quick.  He could still do it if it was necessary.  

    Obama’s lawyers have been involved since the case was opened.  You know he has the best and the brightest.  He’s Harvard law and they liked him enough to elect him to head up the Harvard Law Review. 

    This is a no-brainer, vanity lawsuit, originally filed during the primaries.  It’s going nowhere.  Whatever you think of Obama as a candidate, does anyone think he’s stupid? 

  4. Professor Spiro, this is very old news. Maybe I can shed some light into the supposed birth certificate, because they were in the blogs for a long time, and two persons who I knew from a different blog are responsible for it.

    You may recal that some time ago I mentioned Larry Johnson, former CIA agent, who was opposed to torture. Well, that is the same person who has been engaging in a disinformation campaign against Obama.

    Johnson, a por Hillary supporter has a blog, No Quarter, who is also the one who said that a few weeks before the elction, the so called “Whitey” tape would come up, and that was a reason to not elect Obama. That blog has also been pushing the Ayers connection, the Rezko connection, and of course the fake birth certificate. Also they have been pushing the Hawaii place of birth (no one from Hawaii could be president), the born in Kenya, etc etc etc. All you have to do is to go to that hate site, and you will see it therre day after day.

    Just a warning, that is a hate site, and if you dare post something pro Obama, you will be the subject of all kinds of insults. As a matter of fact, I used to give them hell, and someone began to post under my name until I threaten to file a complaint with the FBI for internet fraud. Only then the owner of the site showed up (I still believe it was him, or one of the administrators)

    So no, it wasn’t a Republican (Johnson is a “former Republican”) but rather a Hillory supporter responsible for those smears.

  5. Even if Obama had been born in Kenya, he would have been a citizen at birth by statute.

    That’s not actually correct under the nationality laws in force at the time of Sen. Obama’s birth.

    If available information (i.e., Google & Wiki) is correct regarding Stanley Dunham (Sen. Obama’s mother) and Sen. Obama’s birthdates, Dunham could not (mathematically) have had the then-required five years of U.S. physical presence after reaching age 14 which would have been required for her to transmit U.S. citizenship to a child born abroad if the father was not also a U.S. citizen.  Since Sen. Obama was born several before Dunham (by then Mrs. Barack H. Obama, Sr.) reached age 19, the math just doesn’t work for Sen. Obama to have legally had U.S. citizenship at birth IF he was born outside of the United States or its outlying territories.

    Hawaii is fine for that, Kenya not so much.

    Subsequent to Sen. Obama’s birth (but I think the events are unrelated), the law was amended, requiring only two years of U.S. physical presence after reaching age 14.

    But this question is purely theoretical and in the nature of alternative history/speculative fiction unless someone can definitively show Sen. Obama not to have been born in Hawaii as he seems to have been.

    I commend to your reading the Immigration and Nationality Act (INA), 8 U.S.C.

  6. months, the omitted word is months, as in Sen. Obama was born several months prior to his mother’s 19th birthday.

  7. Touche to CAA.  You are probably correct that if Obama had been born in Kenya, he would not have been a citizen at birth.  See, e.g., Rico-Ibarra v. Mukasey, 281 Fed Appx. 281 (9th Cir. 2008) (involving child born to 15 year-old US citizen  under same statutory regime).  The complaint in Berg v. Obama makes the claim only in a very garbled form (see paragraph 181). 

    So Obama would have been born a noncitizen.  His mother would have had to petition for his admission to the US as the child of a US citizen.  He would not been eligible to naturalize until his fifth birthday.

    Great hypothetical.  I wonder if he still wouldn’t have passed muster as natural born citizen (along the lines of my argument here), but obviously it would have been more of a stretch.  Fortunately, it’s only a hypothetical.    

  8. @Peter,
    It has the makings of a great conspiracy-theory thriller novel, not to mention a nice case study for the training new consular officers in how to adjudicate citizenship cases.
    I disagree, however, about how far the “natural born citizen” requirement could stretch, since a naturalized citizen is clearly not a citizen from birth, as both Sen. McCain obviously was and a hypothetically-born-in-Kenya Sen. Obama would only have been if his mother had been a little bit older.
    Nice article, by the way, I’ll have to take the time to read it closely.
    v/r,
    CAA

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