This article is written with the purpose to put an end to the controversy surrounding the birthplace of President Barack Obama, and to render the so-called “Birthers” moot. Moot, not because he is already President but rather because his birthplace is of no concern as far as the Constitution and laws of this Nation would have it. Upon reading the complete article an honest assessment of the facts would render President Obama a natural born citizen and entitle him to the full participation in the political process. Yet as sure as the sun will rise in the morning there will be doubters – after all Jesus Christ did not convince all he was the Son of Man.
What triggered this article was the Supreme Court case Nguyen v. INS that was decided in 2001 upholding a gender-based classification in a federal statute. Although Nguyen was an Equal Protection claim that involved a father challenging the federal statute on the ground that Congress treated men and women disparately to the disadvantage of men, it included a host of legal principles that answers the question of whether Barack Obama, had he been born abroad, would be a natural born citizen.
To this point, the Supreme Court has not defined the term natural born citizen but has always understood it to mean that a natural born citizen or a citizen at birth would be eligible to hold the office of President so long as the age and residency requirements were met. Part of the reason the Supreme Court has not definitively defined the term natural born citizen is because it is a non-justiciable matter, rather a political question, a term to be decided by the United States Congress. Congress makes the rules of eligibility for its members. For example, although many of the people who were around for the War of Independence were not actually born on U.S. soil, Congress defined them to be natural born citizens eligible to hold the office of President even though states were individual countries before they entered the Union. This is evident in the case of President Martin Van Buren who was born in 1782 in Kinderhook, New York before New York became a state in 1788.
Soon after WWII the world was opened to Americans. This coupled with the ease of travel and the willingness of a growing number Americans to travel to foreign countries became a great concern of Congress. Thus in 1951 Congress passed statutes that governed citizenship of those born abroad to deal with the fact that many Americans were traveling to foreign nations and having children abroad. Particular to this issue, Congress passed 8 U.S.C § 1401 and § 1409 which passes citizenship upon birth to children of citizens born abroad defining them to be natural born citizens. Two statutes, one of which applies to President Barack Obama.
§ 1409(c) provides in part:
(c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.
§ 1401(d) provides in part:
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;
(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.
(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.
These statutes are written clearly enough to leave only but one interpretation; however, it is the job of the Supreme Court to say what the law is. Marbury v. Madison. Thankfully the Supreme Court interpreted these statues in Nguyen stating, “Congress is well within its authority . . . to commit this country to embracing a child as a citizen entitled as of birth to the full protection of the United States, to the absolute right to enter its borders, and to full participation in the political process. If citizenship is to be conferred by unwitting means . . . it is for Congress, not this Court, to make that determination.” The focus being, of course, entitled “to full participation in the political process” which is to say entitled to become president of the United States.
Therefore it is entirely clear that President Barack Obama, foreign-born or not, is a natural born citizen entitled to hold the office President. No one has questioned the citizenship of his mother. Although there may be questions about his father on whether he was a national or alien or whether the marriage between Barack’s parents was valid since his father may have been married in Kenya prior to meeting Barack’s mother, whatever the case may be, these statues cover all possibilities. He is a natural-born citizen.
To sum it up, it is misguided to believe that the only way a person may qualify to be president of the United States is to be born on U.S. soil – also known as the doctrine of jus soli. However, as § 1401 demonstrates that along with subpart (a) which designates a person born on U.S. soil as a natural born citizen, it defines other scenarios that constitute the same. For instance, John McCain was born in Panama however Congress defined his situation to constitute a natural born citizen and reaffirmed it in May of 2008 by resolution that he was a natural born citizen. Thus it is clear Congress has plenary power to define a natural born citizen beyond the doctrine of jus soli. Unfortunately, the Birthers have no leg to stand on and it is clear why these “Birther lawsuits” are constantly being tossed out.