Comment on Berg Suit Dismissal

Posted by johnhouk on Nov 02, 2008
 Commenter “sus” sends a comment relating to the post “Could BHO Birth Certificate Become a Constitutional Crisis?” Sus found an article that I think agrees with my position. Here is the comment:

JRH 11/2/08
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Comment Sent 11/1/08

This article is posted over at Hannity’s site:

http://forums.hannity.com/showthread.php?t=1077231

Over the last few months there has been a small, but growing, group of people dearly hoping to eliminate Barrak Obama as a presidential candidate due to questions concerning is citizenship status.

In my opinion this is a non-issue as the Technical Knock Out (TKO) that many are hoping for will never happen. Why? Well read below and I’ll explain why. There are two separate questions on the table: (a) the legal requirements, and (b) the political influence of information on voters.

Realistically speaking information which may have no relevance legally can of course have a huge impact on voter perceptions and therefore impact the results of the election. This post addresses Obama’s legal eligibility.

If we are going to defeat Obama we need to do it based on the issues and not based on some trickery of the law. We need to vote against Obama because his tax plan is bad for America. We need to vote against Obama because socialized medicine is bad for America. We need to vote against Obama because he lacks the experience to lead the greatest nation on Earth. We need to vote against Obama because his past associations show a lack of understanding of what America is truly about.

Voting the candidate is something we do in the primaries trying to get our candidate into the final election, however, when it comes to the General Election we have to put sour grapes aside and decide to cast our vote based on what’s best for our country. While I disagree with McCain on certain issues, hands down he is the better candidate to lead this country for the next four years. His economic policies will be better for America then Obama’s, his leadership and moral courage are without a doubt better then Obama’s.

Constitutionally speaking there are only three requirements, (well actually four if you also read the 14th Amendment, but that would be an even tougher challenge then trying for a TKO on citizenship). Those requirements as per Article II are:

    • A Natural Born Citizen,

    • 35 Years of Age,

    • 14 Years a Resident


Now over the last few months we’ve seen multiple lawsuits challenging Obama’s technical eligibility to serve under the law based on his status as either a Natural Born Citizen or not. The Constitution, while listing it as one of the eligibility requirements, does not define what that phrase means. Does it mean you have to be born on United States soil, or, does it mean you have to derive citizenship based on birth (i.e. not a naturalized citizen). So far those challenges have been dismissed based on lack of standing, just as for fairness, was the legal challenge to Senator McCain’s eligibility.

I’m disappointed on these dismissals as I truly feel there should be some mechanism in place to legally vet a candidate for public office, however it appears that will have to wait until after the election. The thrust of these challenges have been centered on a few primary possible points:

    • Possible Dual Citizenship

    • Indonesian Citizenship (by Adoption)

    • Born in Kenya


What does that law say about each of these possible challenges to Obama’s legal eligibility to serve in the Office of President of the United States?

Let’s review.

Possible Dual Citizenship

Some have claimed that you cannot be a citizen of the United States and hold citizenship in another country. This is not the case. In the case of Mandoli v. Acheson (1952) the United States Supreme Court clearly demonstrates that US Citizens can hold citizenship in another country and by holding such citizenship do not relinquish their rights as a United States Citizen and to relinquish citizenship requires positive action after the age of maturity.

http://supreme.justia.com/us/344/133/case.html

Indonesian Citizenship (by Adoption)

The claim is that Obama lost his United States citizenship when adopted in Indonesia. However, no adoption records have been presented, only a school registration slip listing his citizenship as Indonesian. I hate to point out, but school records are not adoption proceeding, they are applications filled out by parents trying to get their kids into school. Might he have been adopted? Maybe, maybe not - but a school registration is not proof.


But actually that whole discussion, while it might impact voters, is irrelevant to his constitutional eligibility as US Citizenship is determined by US law and not by Indonesian Law. Indonesia’s view of his dual citizenship status does not change in anyway the view of the United States’ view of his citizenship status.

Under United States Law the parents of a minor child cannot relinquish the US Citizenship of that child prior to the age of 21 (law at the time) as per the Immigration and Nationality Act of 1952 or prior to 18 years of age (current law) per the United States Code Title 8 Section 1401. Since Obama never relinquished his citizenship after the age of maturity, and his parents could not have relinquished it for him as a minor, then he never lost his citizenship status so no naturalization or oath of allegiance would have been required.

Section 349 (a) From and after the effective date of this Act a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by -

    (1) obtaining naturalization in a foreign state upon his own application, upon an application filed in his behalf by a parent, or duly authorized agent, or through the naturalization of a parent having legal custody of such person: Provided, That nationality shall not be lost by any person under this section as a result of the naturalization of a parent or parents while such a person is under the age of twenty-one years, or as the result of naturalization obtained on behalf of a person under twenty-one years of age by a parent, guardian, or duly authorized agent, unless such person shall fail to enter the United States to establish a permanent residence prior to his twenty-fifth birthday (LINK)


Born in Kenya

The final legal challenge is based on the idea that Obama was born in Kenya and his mother then flew to Hawaii to register the birth. This is the issue which generates all the discussion about his birth certificate. The perception is that the law of at the time (Immunization and Nationality Act of 1952) required that a person born to a couple where one was a US Citizen (Stanley Ann Dunham) and the other an Alien (Barrak Obama Sr, Kenyan) - that the US Citizen had to have been a citizen for 10 years, 5 of which were after the age of 14 to be able to pass citizenship to an offspring by birth. Current law as contained in USC Title 8 Section 1401 (paragraph g) states that to pass citizenship in this case the parent need only have been a citizen for 5-years two of which were after the age of 14.

But you say the law from 1952 is applicable, not the current law? Not quite.

This now appears to be incorrect as in 1994 Public Law 103-416 was passed which is the Immigration and Nationality Technical Corrections Act of 1994.

This law makes current immigration law applicable retroactive to Obama’s birth in 1961. As such it does not matter if Obama was born in Kenya or in Hawaii as he would have been a citizen by birth either way. By his mother’s status if born in Kenya and by his location if born in Hawaii.

UNITED STATE CODE
TITLE 8 > CHAPTER 12 > SUBCHAPTER III > Part I > § 1401

(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 (LINK)

Immigration and Nationality Technical Corrections Act of 1994 (Enrolled as Agreed to or Passed by Both House and Senate)

TITLE I - NATIONALITY AND NATURALIZATION

SEC. 101. EQUAL TREATMENT OF WOMEN IN CONFERRING CITIZENSHIP TO CHILDREN BORN ABROAD.

(c) RETROACTIVE APPLICATION- (1) Except as provided in paragraph (2), the immigration and nationality laws of the United States shall be applied (to persons born before, on, or after the date of the enactment of this Act) as though the amendment made by subsection (a), and subsection (b), had been in effect as of the date of their birth, except that the retroactive application of the amendment and that subsection shall not affect the validity of citizenship of anyone who has obtained citizenship under section 1993 of the Revised Statutes (as in effect before the enactment of the Act of May 24, 1934 (48 Stat. 797)). (LINK)


In closing I urge all American’s to weigh the candidates and base your decision on the course you wish to set for America over the next 4-years.

God bless the USA.
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