For He Is Not an Article II “Natural Born Citizen”
– Mario Apuzzo, Esq. 

 A joint session of Congress meets to count the Electoral College vote from the 2008 presidential election the House Chamber in the U.S. Captiol
       The joint session of Congress meets to
count the 2008 Electoral College vote 


The issue of Obama’s eligibility to be President has always been whether he is an Article II “natural born Citizen.” And that issue has always been about answering two questions: (1) whether he was born in the United States and (2) whether at the time of his birth in the United States he was born to United States citizen parents, for a “natural born Citizen” is defined as a child born in a country to parents who were citizens of that country. See Mario Apuzzo, The Two Constitutional Obstacles Obama Has to Overcome to be President, at on December 20, 2008). 

Obama eligibility supporters like to focus on the first question, place of birth, for it lends to so much controversy, speculation, and confusion. The place of birth question raises concerns about whether Obama’s birth certificate, social security number, and draft registration card are false. Of course, for any of that to be true would necessitate conspiracy among many individuals employed by various state and federal government agencies. The charges of conspiracy gives Obama’s supporters great opportunity to ridicule and mock concerned American citizens who–given that Obama has never released his original birth certificate to any controlling government authority, Obama still refuses to give his consent to release to the public his birth, education, travel, and work records, and some have uncovered unconfirmed information suggesting that Obama was born in Kenya–are still searching for a conclusive answer to the question of whether Obama was born in the United States. These Obama supporters bask in the ease by which they are able to attack those who, without any government or law enforcement assistance, are still investigating Obama’s place of birth with little resources available to them. These Obama eligibility supporters also like to make everyone think that the place of birth issue seals a victory for Obama and them. But such a statement is false. 

These Obama eligibility supporters have not been able to adequately cast off either by way of any current well-researched and reasoned court decision or otherwise the other requirement for being a “natural born Citizen,” i.e., that the child must be born to parents who were citizens of the country when the child was born. As we can see below, there is a great amount of historical, U.S. Supreme Court, and Congressional sources that confirms this additional requirement which neither a handful of lower law and administrative courts–which have ruled that they have no jurisdiction or plaintiffs have no standing, but yet have still decided the merits of the question of whether Obama is a “natural born Citizen”–nor these Obama eligibility supporters have been able to adequately address. 

What does all this mean for Congress which on January 4, 2013 will be counting the Electoral College votes and deciding whether President Elect Barack Obama is constitutionally qualified to be President? Under Article I, II, and III, the legislative, executive, and judicial branches of government are each given specific and exclusive powers. This is our separation of powers feature of our tripartite form of government. Under this doctrine, powers given to one branch are not to be exercised by any other. Under this scheme and specifically under Article III, the power to interpret the constitution is given solely to the judiciary. The Constitution does not textually commit the resolution of the question of what is a “natural born Citizen” to any specific branch of government other than the judicial branch. The question is no different from the question faced countless times by our nation’s federal and state courts when deciding what the applicable eligibility requirements for any given elected office are. Hence, the constitutional question of the meaning of a “natural born Citizen” is left to the judicial branch to resolve. 

Article II, Section 1, Clause 5 provides: “No person except a natural born Citizen, or a Citizen of the United 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.” Hence, “natural born Citizen” is one of the three exclusive constitutional eligibility requirements to be President found in this article, with the other two being a minimum of 35 years of age and 14 years of U.S. residency. As Powell v. McCormack, 395 U. S. 486, 519 (1969) explained, to determine the nature and extent of constitutionally specified eligibility qualifications is within the court’s power to do. Id. at 522. Determining what a “natural born Citizen” is involves determining the meaning of a constitutional provision which is strictly within the power of the courts to decide. It is a constitutional birth status. The Constitution gives to the courts the authority and the specific task of interpreting the Constitution, which necessarily includes the words and clauses it uses. “Natural born Citizen” is a clause that exists in the Constitution. As Marbury v. Madison, 1 Cranch 163 (1803) long ago established, our judicial branch of government is duty bound to interpret the Constitution to provide meaning to its clauses and is well equipped to do so. In fact, the courts have been doing just that since the Founding. In fact, our judicial branch of government has for centuries engaged in judicial review of matters involving citizenship. The courts are therefore well equipped to interpret the Constitution which includes interpreting and applying the “natural born Citizen” clause, whose decision on the matter Congress must then respect. 

In matter of citizenship, Congress has under Article I, Section 8, Clause 4, power only to make uniform the laws of naturalization. This power does not include the power to define an Article II “natural born Citizen.” To grant Congress the sole or any authority to decide what a “natural born Citizen” is would also defeat the U.S. Supreme Court’s constitutional mandate that it is the “ultimate interpreter of the Constitution.” Nixon v. United States, 506 U.S. 224, 237 (1993). Indeed, Congress is constitutionally bound to follow the lead of the U.S. Supreme Court on the meaning and application of the Constitution. Apart from the First Congress in the Naturalization Act of 1790 considering as a “natural born citizen” a person born out of the United States to U.S. citizen parents which the Third Congress changed to considered as a “citizen of the United States” in the Naturalization Act of 1795, and later Congresses just applying the already existing definition of the clause and providing a different definition of a “citizen of the United States” at birth under the Fourteenth Amendment, neither the Constitution nor historical practice show that Congress has ever taken it upon itself to define a “natural born Citizen.” Finally, for the Congress to take it upon itself to define a “natural born Citizen” in a manner that is not consistent with U.S. Supreme Court precedent would be an unconstitutional usurpation of judicial power which belongs only to the U.S. Supreme Court. 

The Twentieth Amendment and 3 U.S.C. Sec. 1 et seq. provide a mechanism for Congress to follow when meeting in joint session for the purpose of counting the Electoral College votes and confirming the constitutional eligibility of a President Elect to actually hold that office. But while Congress surely has the power to count Electoral College votes and if necessary fully investigate the question of a President Elect’s constitutional eligibility to be President and make a decision based on its own investigation, the extent of its investigation can only go as far as its legislative and regulatory powers allow it to go. Again, Congress has no direct power to define a “natural born Citizen.” Defining a “natural born Citizen” also does not fall under any investigation in aid of any legislative function. Also, the Twentieth Amendment does not commit to Congress the task of determining what a “natural born Citizen” is, i.e., what is the definition of a “natural born Citizen.” See Nixon, 506 U.S. at 237 (“Our conclusion in Powell was based on the fixed meaning of ‘[q]ualifications’ set forth in Art. I, § 2. The claim by the House that its power to ‘be the Judge of the Elections, Returns and Qualifications of its own Members’ was a textual commitment of unreviewable authority was defeated by the existence of this separate provision specifying the only qualifications which might be imposed for House membership. The decision as to whether a Member satisfied these qualifications was placed with the House, but the decision as to what these qualifications consisted of was not” (citing and discussing Powell v. McCormack, 395 U.S. 486, 539 (1969)). See also Powell v. McCormack, 395 U.S. 486, 550 (1969) (in invalidating the House’s decision not to seat a Member accused of misuse of funds, the Court held that “in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution”). Surely, if Congress cannot add to those constitutionally prescribed qualifications for its own members, it also cannot take away from them. Giving Congress the power to define a “natural born Citizen” with respect to presidential qualifications would do just that, either add to the definition or take away from it and thereby impact on the qualifications to be President. Hence, it is clear under Powell that it is the U.S. Supreme Court which must determine the meaning of a “natural born Citizen,” and not Congress. 

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