Natural Born Citizen – A Place to Ask Questions and Get the Right Answers

April 19, 2011

What Governor Jan Brewer Should Do With the Arizona Vetting and Eligibility Bill She Just Vetoed

What Governor Jan Brewer Should Do With the Arizona Vetting and Eligibility Bill She Just Vetoed

By: Mario Apuzzo, Esq.
April 19, 2011

We all know by now that Governor Jan Brewer on April 18, 2011, vetoed Arizona’s historic vetting and eligibility bill that passed both Houses of government. But I have not heard the Governor offer any solution to the problem of assuring the integrity of the state and federal electoral process.

Governor Brewer should simply advise the Arizona legislature what her problems are, e.g., she says they are circumcision documentation (just one of the listed documents) in place of a birth certificate should the latter document not be available and the role of the Secretary of State to make sure the candidate meets the eligibility requirements, and ask them to modify the language or take it out of the law. The legislature can then resubmit the bill. That is how simple it is.

Governor Brewer also needs to understand that the federal government has not legislated in this area of vetting and confirming eligibility of presidential and vice-presidential candidates for state electoral ballot placement. Hence, at present, someone unknown person is de facto fulfilling the role which would be legally given to the states’ Secretary of States.

She also needs to understand that the Constitution and case law give the states appropriate powers over the state election process which also necessarily impact on presidential and vice-presidential candidates, ability to be placed on state election ballots.

Hence, the federal government has left it up to the states to address the ballot vetting issue and would expect them to do so, provided their vetting means are reasonably in keeping with constitutional eligibility ends which are “natural born Citizen,” age 35 years old, and U.S. resident for 14 years.

Governor Brewer also needs to understand how important the Arizona legislation is not only to Arizona but to the rest of the nation. History has shown that when one acts others will follow. Here vetoing this bill without offering a solution has caused great damage to the efforts of others to bring integrity to the electoral process involving the president and vice-president.

The lack of federal law in this area has caused the national constitutional crisis involving putative President, Barack Obama II. It is totally irresponsible and contrary to her oath to preserve, protect, and defend the Constitution for Governor Brewer to simply veto this legislation without offering a solution. Governor Brewer and the Arizona Legislature need to get together and iron out the impediments, whether real or imagined, to this much needed legislation.

Mario Apuzzo, Esq.
April 19, 2011
http://puzo1.blogspot.com/
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Copyright © 2011
Mario Apuzzo, Esq.
All Rights Reserved

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April 12, 2011

>An Analysis of the Current Revelations of Hawaii’s Dr. Chiyome Fukino to NBC News Regarding Obama’s Place of Birth

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An Analysis of the Current Revelations of Hawaii’s Dr. Chiyome Fukino to NBC News Regarding Obama’s Place of Birth

By Mario Apuzzo, Esq.
April 12, 2011

Recently we saw an article appear at msnbc.com written by Michael Isikoff, National investigative correspondent for NBC News. The article is dated April 10, 2011, and is entitled, “Ex-Hawaii Official Denounces ‘Ludicrous’ Birther Claims.” It can be read at: http://www.msnbc.msn.com/id/42519951/ns/politics-more_politics# I will now analyze the many problems that exist with this “investigative” story. My criticisms are directed at both Dr. Fukino and Mr. Isikoff.

The article states:

“The Hawaiian state health official who personally reviewed Barack Obama’s original birth certificate has affirmed again that the document is ‘real’ and denounced ‘conspiracy theorists’ in the so-called ‘birther’ movement for continuing to spread bogus claims about the issue.

‘It’s kind of ludicrous at this point,’ Dr. Chiyome Fukino, the former director of Hawaii’s Department of Health, said in a rare telephone interview with NBC.

Fukino, sounding both exasperated and amused, spoke to a reporter in the aftermath of Donald Trump’s statements on the NBC Today show last week questioning whether Obama has a legitimate birth certificate.

Trump, who says he is considering a run for president, repeated his claims on CNN’s ‘State of the Union’ Sunday, saying that ‘nobody has any information’ about the president’s birth and that ‘if he wasn’t born in this country, he shouldn’t be president of the United States.’

No matter what state officials release on the issue, the ‘birthers’ are going to question it, said Fukino. ‘They’re going to question the ink on which it was written or say it was fabricated,’ said Fukino. ‘The whole thing is silly.’”

Here we see nothing but excuses for not releasing Obama’s long-form, hospital generated birth certificate which I will call his “real birth certificate.” This is not to be confused with a short-form Certification of Live Birth (COLB) dated June 2007 which Obama released on the internet in 2008, which does not contain the name of the birth hospital and the names and signatures of the delivery doctor and other witnesses to the birth.

Isikoff states:

“Contacted by NBC, Fukino expanded on previous public statements and made two key points when asked about Trump’s recent comments.”

Fukino no longer works for the Hawaii Department of Health. Why did Mr. Isikoff not contact the current health department director who overseas the birth certificates in Hawaii? Why do we have to hear from someone who no longer works for Hawaii and no longer has any control over or access to its vital records files? Why can we not hear from the current official who could tell us what is in the file today?

Mr. Isikoff writes:

“The first is that the original so-called ‘long form’ birth certificate — described by Hawaiian officials as a ‘record of live birth’ — absolutely exists, located in a bound volume in a file cabinet on the first floor of the state Department of Health. Fukimo said she has personally inspected it — twice. The first time was in late October 2008, during the closing days of the presidential campaign, when the communications director for the state’s then Republican governor, Linda Lingle (who appointed Fukino) asked if she could make a public statement in response to claims then circulating on the Internet that Obama was actually born in Kenya. Before she would do so, Fukino said, she wanted to inspect the files — and did so, taking with her the state official in charge of vital records.”

Fukino is sure to tell us the exact location of where the real birth certificate was located. She gives us great detail to lend credibility to her story. But she does not tell us who this state official was who accompanied her and whether he or she also saw the real birth certificate. She does not identify any other person who allegedly saw the real birth certificate. One would think that such information would be important and lend credibility to her story. But for some unknown reason, she finds it important to give details of where the birth certificate was located but not that someone other than herself actually saw it.

Isikoff then tells us:

“She found the original birth record, properly numbered, half typed and half handwritten, and signed by the doctor who delivered Obama, located in the files.”

Why does Fukino tell us that the real birth certificate showed the doctor on it but she fails to tell us that Obama’s birth occurred in a hospital which is what Obama told the public occurred? After all, she knows how much “birthers” have been demanding to see conclusive proof that Obama was born in Kapi’olani Hospital, the hospital in which Obama says he was born. There would be no violation of any privacy laws for her to simply say that he was born in a hospital, without giving the name of the hospital, just like she said that a doctor delivered Obama and signed the birth certificate. What is suspect is that there were numerous doctors at that time who could have delivered Obama but only two hospitals in which he could have been born, Kapi’olani Hospital or Queens Hospital. In other words, the doctors get lost in the shuffle but the hospitals do not. Just saying that a doctor signed the birth certificate does not open up channels of information that can be independently verified. On the other hand, knowing the birth hospital pins down the place of birth to only two specific locations in which there would be contained medical evidence of the alleged birth there.

The article continues:

“She then put out a public statement asserting to the document’s validity. She later put out another public statement in July 2009 — after reviewing the original birth record a second time.”

Why did her public statements back then not include the additional information that she is now willing to share with the public? Why has she waited so long to tell us her information?

Isikoff then quotes Fukino:

“’It is real, and no amount of saying it is not, is going to change that,’ Fukino said. Moreover, she added, her boss at the time, Lingle — who was backing John McCain for president — would presumably have to be in on any cover up since Fukino made her public comment at the governor’s office’s request. ‘Why would a Republican governor — who was stumping for the other guy — hold out on a big secret?’ she asked.”

Why is Fukino theorizing about what a Republican Governor would or would not do? Either Hawaii has or does not have the real birth certificate. If they have the document, there is no need to theorize that the Republican Governor would not go along with any conspiracy. Additionally, Fukino does not say that Lingle ever saw the real birth certificate. So how could Lingle be involved in any alleged “cover up” if she was never privy to any information on the issue? By dragging Lingle into the alleged conspiracy makes it look like Lingle had access to some inside information which she would not fabricate because of her opposition position with the Republican Party.

Isikoff continues:

“Her second point — one she made repeatedly in the interview — is that the shorter, computer generated ‘certification of live birth’ that was obtained by the Obama campaign in 2007 and has since been publicly released is the standard document that anybody requesting their birth certificate from the state of Hawaii would receive from the health department.

The document was distributed to the Obama campaign in 2007 after Obama, at the request of a campaign official, personally signed a Hawaii birth certificate request form downloaded on the Internet, according to a former campaign official who asked for anonymity. (Obama was ‘testy’ when asked to sign the form but did so anyway to put the issue to rest, the former campaign official said.”

Why should a former campaign official who was involved in a presidential election and who can shed light on this national crisis issue want to maintain anonymity? Should concerned Americans not be able to learn who was intimately involved in handling Obama’s birth certificate? After all, what is the harm to anyone in knowing that information?

In 2007, there was no issue regarding Obama’s place of birth. The issue of his place of birth came up in 2008. So how could Obama have been “testy” in having to obtain his birth certificate and for reasons of putting “the issue to rest?” If there was no place of birth issue in 2007 why did Obama allegedly request his Certification of Live Birth (COLB) in 2007 which he did receive and which is dated June 6, 2007 to put to rest a nonexistent issue? Why have we not heard that Obama used that 2007 COLB by sending a copy of it to someone who he thought needed it? We have not heard that he sent a copy of that document to any state election officials to show that he was a “natural born Citizen.” Why did Obama wait a whole year before using the 2007 COLB?

Isikoff writes:

“The certification that the campaign received back —which shows that Obama was born in Honolulu at 7:24 p.m. on Aug. 4, 1961 — was based on the content of the original document in state files, Fukino said.

‘What he got, everybody got,’ said Fukino. ‘He put out exactly what everybody gets when they ask for a birth certificate.'”

But Fukino fails to tell us who in the Hawaii Department of Health processed in 2007 Obama’s alleged request for a copy of his birth certificate. She does not tell us that she personally looked at the real birth certificate and used it to prepare the COLB. She is only speculating that someone did that. But she does not tell us who would have done that at that time. As the director of that department, she would have known who her employees were at that time. She could have easily identified the employee who prepared the document so that Mr. Isikoff could have done further “investigative” follow up with that person.

The article continues:

“Hawaiian officials say that the certification is, in fact, only one piece of abundant evidence of Obama’s birth in Hawaii. Joshua Wisch, a spokesman for the Hawaii attorney general’s office, noted that a public index of vital records, available for inspection in a bound volume at the Health Department’s Office of Health Status Monitoring, lists a male child named ‘Obama II, Barack Hussein’ as having been born in the state.”

But this public index only proves that a birth was registered in Hawaii. It is not independent medical evidence of any such birth actually occurring in Hawaii.

The article adds:

“In addition, as Factcheck.org and other media organizations have repeatedly pointed out, both of Honolulu’s newspapers, the Honolulu Advertiser on Aug. 13, 1961, and the Honolulu Star Bulletin, on Aug. 14, 1961, both ran birth announcements listing Obama’s birth on Aug. 4 of that year.”

The newspaper birth announcements are not evidence of a birth in Hawaii. At best they are evidence that the Hawaii Department of Health put those ads in the newspapers based on a birth being registered as having occurred in Hawaii. The announcements are not the product of a medically verified birth in Hawaii. They do not have a direct link to the birth hospital.

The article goes on to say:

“Even Fukino accepts that her comments are not likely to end the matter for the die-hard birthers. Trump and other skeptics have questioned why the original birth certificate has not been released.

But Wisch, the spokesman for the attorney general’s office, said state law does not in fact permit the release of “vital records,” including an original “record of live birth” — even to the individual whose birth it records.

‘It’s a Department of Health record and it can’t be released to anybody,’ he said. Nor do state laws have any provision that authorizes such records to be photocopied, Wisch said. If Obama wanted to personally visit the state health department, he would be permitted to inspect his birth record, Wisch said.

But if he or anybody else wanted a copy of their birth records, they would be told to fill out the appropriate state form and receive back the same computer generated ‘certification of live birth’ form that everybody else gets — which is exactly what Obama did four years ago.”

Fukino attacks anyone who will not be convinced by her story, marginalizing them and casting aspersions toward them. It is rather absurd for Mr. Wisch to contend that someone could not get a certified copy of their own birth certificate, especially the President of the United States. There is no law in Hawaii that so provides. On the contrary, the Hawaii Revised Statutes, Section 338-13(a) states that the department “shall, upon request, furnish an applicant a certified copy of any certificate, or the contents of any certificate, or any part thereof.” Paragraph (c) also provides that copies of birth certificates “may be made by photograph, dry copy reproduction, typing, computer printout or other process approved by the director of health.” Hence, Hawaii’s statutes directly contradict what Mr. Wisch is telling the public.

To further prove that Mr. Wisch is wrong and/or inventing information, we have seen recent examples of people who were born in Hawaii obtain with little fanfare a certified copy of their original long-form, hospital generated birth certificate. A friend of Miki Booth–who was born in Japan, spent much of her life in Hawaii and ran for Congress in 2010 from the Second District of Oklahoma—has a friend who obtained a copy of his long-form, Certificate of Live Birth in March 2011. See the story here, http://www.thepostemail.com/2011/04/07/exposing-the-birth-certificate-lies-used-to-cover-for-obama/. Also, October 13, 2010, a “Danae” posted on FreeRepublic a copy of her long-form, birth certificate originally issued in 1969, which she obtained by mail from the Hawaii Department of Health on September 28, 2010 after paying a $10.00 fee. She also posted a copy of the receipt that she got for paying the $10.00 fee. An interesting question is — where is the copy of Obama’s receipt for allegedly ordering a copy of his Certification of Live Birth in 2007?  Surely the Hawaiian authorities could release a copy of that. Financial transactions of a government are public information.

We know that Governor Abercrombie recently tried to prove that Obama was born in Hawaii. He told the public that he was going to see if he could release Obama’s real birth certificate. Eventually, Abercrombie told the public in a very vague and evasive fashion that he could do no more because of privacy laws. He did say that he found out that Obama’s birth was written down in some state archive. What is strange is that if the long-form birth certificate exists in Obama’s birth file as Fukino is now telling us, why could Abercrombie not tell us the same information that she told us? Why did Abercrombie have to be so evasive and vague about the matter? He could have told us like she did that he went into the health department file and actually saw with his own eyes Obama’s long-form birth certificate and he could have also told us that it contained all the information that Fukino now tells us it contained when she saw it. Abercrombie could have even told us what Fukino left out, i.e., that per the birth certificate, Obama was born in a hospital. Fukino only told us what was in the birth file when she worked there. Abercrombie, as the current Governor, could have told us what is in the file today. That would have been more credible. What is also suspect is that there is no one from Hawaii telling us what is in the health department file today. Rather, Fukino tells us what was in the file in the past. Hearing from someone with official authority tell us what is in the file today would have given the story more credibility given that now Joshua Wisch tells us that today no one can have a copy of the real birth certificate, not even Obama himself, a statement which in itself is incredible and has no basis in law. How convenient can Hawaii get, telling us that at one time the birth certificate was in the file but today no one, not even Obama, is allowed to get a copy of that birth certificate.

What Fukino now tells us is contradicted by former Hawaii election clerk, Tim Adams, who has stated and sworn under oath, that he worked in the Hawaii elections office during the 2008 presidential election and that even though Hawaiian election officials searched for Obama’s long-form, hospital generated birth certificate, none could be found. Rather, what was found was a registration and archive notation which sounds like what Abercrombie has told us.

It is very suspect that Hawaii tells the public what was in Obama’s birth file in the past but does not tell us what is in the file today. Fukino does not even mention that anyone has inspected the file today to see that those same documents are still in it. Why did Mr. Isikoff no reach out to any current officials in the health department for his story? Such a set up is suspicious, for if access to the file is eventually gotten and the alleged real birth certificate is not in there, Fukino can conveniently say that it was there when she looked and she has no control over what happened to it since she does not work there anymore.

What is also suspicious is that Hawaii, using privacy laws as an excuse, will not even release to the public a copy of the documents evidencing someone requested the birth certificate in 2007 and paid for its reproduction costs.

This whole article is also very suspect since we do not have direct quotes from Fukino but rather what Mr. Isikoff summarized to allegedly be her statements. Why would the reporter not provide direct quotes to such important statements?

So where is the grand conspiracy of which the “birthers” are accused? Based on what Dr. Fukino tells us, there is only one person who has actually seen Obama’s real birth certificate and that is she. Hawaii has not identified any other person who has seen it. So Obama’s nativity story is now held together by only one person, Dr. Fukino. That does not sound like much of a conspiracy story.

Why does Obama not want the public to see his real birth certificate or to learn that no real birth certificate exists? The real birth certificate could reveal information that puts into serious doubt that Obama was in fact born in Hawaii. The absence of a real birth certificate could also put into serious doubt his claim that he was actually born in Hawaii. Or the real birth certificate could contain information that is highly embarrassing to Obama and which could put in jeopardy his life narrative that he has put into the public. Whatever could be the truth of Obama’s problem, the American people whom the President serves are entitled to know which one of those truths it is.

Obama’s supporters are proclaiming Dr. Fukino’s recent revelations are the death of the “birthers.” On the contrary, as we can see, what Dr. Fukino has recently said is a far cry from finally resolving the issue concerning Obama’s place of birth. If anything, it just has added more suspicion to the whole story.

Donald Trump needs to continue to press forward in his quest to find out what the truth is.

Mario Apuzzo, Esq.
April 12, 2011
http://puzo1.blogspot.com/
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Copyright © 2011
Mario Apuzzo, Esq.
All Rights Reserved

April 3, 2011

>Governor Abercrombie’s Bogus Quest to Prove Obama Was Born in Hawaii

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Governor Abercrombie’s Bogus Quest to Prove Obama Was Born in Hawaii
By Mario Apuzzo
April 2, 2011

Hollywood celebrity journalist/radio host, Mike Evans, has known now Governor of Hawaii, Neil Abercrombie, for decades. He first met the Governor when the Governor was driving a cab in Honolulu, Hawaii. They became good friends. They spent a lot of time together in Washington during the time of Obama’s inauguration. Abercrombie told Evans then that he was going to run for Governor of Hawaii. He also told Evans that he remembered Obama as a child and that he used to call him Barry. He told him that once he became Governor, he was going to put an end to the story that Obama was not born in the United States by getting a copy of his birth certificate.

Abercrombie did become Governor and using his powers as Governor, he did look for the document. On January 19, 2011, Abercrombie told Evans during a telephone conversation that he searched everywhere for the birth certificate. He told him that he went to the only two hospitals that existed in Honolulu at the time at which a baby could be born, Kapi’olani Women’s and Children’s Hospital and Queen’s Hospital. Abercrombie told him that there is no Obama birth certificate in Hawaii and that there is absolutely no proof that Obama was born in Hawaii. Abercrombie also told Evans that he remembered Obama playing in a tee-ball league when he was about 5 or 6 but not before that. A confirmation of this information can be heard on a recording of an interview on the radio 92 KQRS Morning Show done on January 20, 2011. During this radio show, Mike Evans, recounts the details of his conversation he had with Governor Abercrombie just the day before.

A story on this new revelation and the radio interview can be heard at http://obamareleaseyourrecords.blogspot.com/2011/01/hawaii-hollywood-reporter-mike-evans.html. A full bio on Mike Evans can be seen at http://www.evansradio.com/mikestory.html.

On January 20, 2011, former Hawaii elections clerk Tim Adams signed an affidavit in which he swears that his supervisors in Hawaii told him that no long-form, hospital-generated birth certificate existed for Obama. He swears that he was also told that neither Queens Medical Center nor Kapi’olani Medical Center in Honolulu had any medical record showing that Obama was born in either facility. Read more: Hawaii official now swears: No Obama birth certificate http://www.wnd.com/?pageId=254401#ixzz1C21WDdlc

Governor Abercrombie then announced that he could do not more to prove Obama was born in Hawaii because it is against state law to release private documents such as his birth certificate. See the story here http://www.staradvertiser.com/news/breaking/114401004.html.

The question now is if Abercrombie has not been able to find any Obama Hawaii birth certificate, why did he tell the public that he was abandoning his search for it because privacy laws prohibit him from disclosing the document? Let’s grant to Abercrombie that his efforts were thwarted by privacy laws. But what I do not understand is why he did not simply obtain Obama’s consent for the release of the birth certificate. After all, Abercrombie said that he was a friend of Obama’s parents and knew him as a child.

What I also do not understand is why Abercrombie, who was so concerned about honoring Obama’s parents and the 2012 presidential election would give up on his quest so easily just because he cannot get the birth certificate released. Is the birth certificate the only piece of evidence that could prove or disprove an Obama Hawaiian birth? What happened to talking to family and friends from 1961 about an Obama birth in Hawaii? Is there no doctor, nurse, family member, friend, or official who remembered the Obama birth in Hawaii and could give Abercrombie confirming evidence of a Hawaiian birth? Abercrombie said that he was a friend of Obama’s parents and knew him as a child. Why could Abercrombie not find any other evidence of an Obama birth in Hawaii? With the resources of the Governor’s Office and the publicity generated by this story, how could the Governor not find one person on the whole island of Hawaii or even from the mainland who could confirm with any real evidence that Obama was born in Hawaii?

There is also another highly suspect part to Abercrombie’s story. And that has to do with medical records. Hawaii Health Department has publicly released incomplete and inconclusive information which Obama supporters claim shows that Obama was born in Honolulu. During the 2008 election, Hawaii’s Director of Health, Chiyome Fukino, said:

“There have been numerous requests for Sen. Barack Hussein Obama’s official birth certificate. State law (Hawaii Revised Statutes §338-18) prohibits the release of a certified birth certificate to persons who do not have a tangible interest in the vital record. Therefore, I as Director of Health for the State of Hawai’i, along with the Registrar of Vital Statistics who has statutory authority to oversee and maintain these type of vital records, have personally seen and verified that the Hawaii State Department of Health has Sen. Obama’s original birth certificate on record in accordance with state policies and procedures. No state official, including Governor Linda Lingle, has ever instructed that this vital record be handled in a manner different from any other vital record in the possession of the State of Hawaii.”

Months later, in July 2009, she added:

“I, Dr. Chiyome Fukino, Director of the Hawaii State Department of Health, have seen the original vital records maintained on file by the Hawaii State Department of Health verifying Barack Hussein Obama was born in Hawaii and is a natural-born American. I have nothing further to add to this statement or my original statement issued in October 2008 over eight months ago.”

As we can see, Dr. Fukino, a medical doctor, did not mention anything about the most compelling and probative evidence of a birth event, to wit, medical evidence. As I have reported in my May 6, 2010 article entitled, A Catalog of Evidence – Concerned Americans Have Good Reason to Doubt that Putative President Obama Was Born in Hawaii , Section 338-5 of the Hawaiian statute provides: “§338-5 Compulsory registration of births. Within the time prescribed by the department of health, a certificate of every birth shall be substantially completed and filed with the local agent of the department in the district in which the birth occurred, by the administrator or designated representative of the birthing facility, or physician, or midwife, or other legally authorized person in attendance at the birth; or if not so attended, by one of the parents. The birth facility shall make available to the department appropriate medical records for the purpose of monitoring compliance with the provisions of this chapter. [L 1949, c 327, §9; RL 1955, §57-8; am L Sp 1959 2d, c 1, §19; HRS §338-5; am L 1988, c 149, §1].”

Obama alleges he was born in Kapi’olani Maternity & Gynecological Hospital, now called Kapi’olani Medical Center for Women and Children. At no time during the ongoing public debate about whether Obama was born in Hawaii has any official from Hawaii at least informed the pubic that Obama’s alleged vital records show that his birth certificate from 1961 was “completed and filed” with the health department in Honolulu by some official of that hospital or a physician or midwife associated with that institution. If Obama was born in a hospital as he claims, we cannot reasonably believe that his birth certificate would have been completed and filed by one of his parents. Additionally, under this statute, Hawaii has the power and authority to obtain medical records from Kapi’olani Medical Center to confirm Obama’s alleged Hawaiian birth. At no time did Hawaii inform the American public that it in fact confirmed with that hospital that Obama was in fact born there which it can do under the cited statute. Hawaii has withheld this underlying evidence from the public. This withholding of evidence is a grave matter given that there exists such reasonable doubt as to whether Obama, the putative President and Commander in Chief of our military might, was in fact born in Hawaii.

Under Section 338-5, any birth certificate has to be completed and filed by some institution (hospital) or person (doctor, midwife, or parent). This statute also shows that Hawaii has the authority to confirm any reported birth by examining medical records. While Hawaii pretends to have come clean with the American public, it did not even provide such basic information or conduct such due diligence regarding extant medical evidence which would give the public that needed assurance that Obama’s birth record is genuine.

With the State of Hawaii having such authority under Section 338-5 to confirm through medical records that a birth in fact occurred in a Hawaiian hospital, why did Abercrombie not confirm for the American people that the Obama birth file in Hawaii in fact shows that his birth event is corroborated with medical evidence from Kapi’olani Medical Center as is required by Section 338-5?  Are we to reasonably believe that there exists no medical evidence confirming Obama’s birth in Hawaii that Governor Abercrombie can share with the American people? 

We will know what the underlying evidence is about Obama’s alleged birth in Hawaii only if we can examine Obama’s contemporaneous birth certificate from 1961, the long-form, hospital generated birth certificate, which should be readily available since Obama claims he was born in Kapi’olani Medical Center in 1961. That root document will tell us the name of the hospital in which he was born and the name of the doctor or midwife who delivered him. Those pieces of information are highly corroborative of the place and time of birth, for they provide a whole other dimension of contemporaneous facts that would support Hawaii’s or anybody else’s bare statement as to the place and time of Obama’s registered birth.

Governor Abercrombie, you really need to do better for the majority of American people who want and are entitled to see credible and convincing proof of where Obama was born. 

Mario Apuzzo, Esq.
April 2, 2011
http://puzo1.blogspot.com/
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Copyright © 2011
Mario Apuzzo, Esq.
All Rights Reserved

April 1, 2011

>Donald Trump Is a “Natural Born Citizen” But Putative President Barack Obama Is Not

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Donald Trump Is a “Natural Born Citizen” But Putative President Barack Obama Is Not

By Mario Apuzzo, Esq.
March 31, 2011

Based on the information that has so far been provided to the public, I conclude that Donald Trump is an Article II “natural born Citizen” but Barack Obama is not.

The Founders and Framers understood that under natural law and the law of nations, as explained by Emer de Vattel in his, The Law of Nations, Or, Principles of the Law of Nature (London 1797) (1st ed. Neuchatel 1758) (“Vattel”), a nation’s most fundamental duty is self-preservation. They therefore included the “natural born Citizen” clause in the Constitution so that each and every citizen would be protected by having someone assume and exercise the great and singular civil and military powers of the President and Commander in Chief with only their and the nation’s values and safety at heart. To accomplish that end, the Founders and Framers required in Article II, Section 1, Clause 5 of our Constitution that anyone who was a “citizen of the United States” at the time of the adoption of the Constitution was eligible to be President. But for anyone born thereafter, they built in extra protection for the nation by requiring that anyone born after the adoption of the Constitution be a “natural born Citizen.”

While a “citizen of the United States” is any citizen so made by the Fourteenth Amendment, Act of Congress, or treaty, a “natural born Citizen” is a child born in the country to citizen parents. Vattel, Sections 212-217. Here are some supporting sources, and there are more, for this definition:

(1) Founder historian, David Ramsay, who in his A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789) told us that after July 4, 1776, birthright citizenship was preserved only for a child born to U.S. citizens, making no mention of place of birth. In his 1789 article, Ramsay first explained who the “original citizens” were and then defined the “natural born citizens” as the children born to citizen parents. He said concerning the children born after the declaration of independence, “[c]itizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens….” Id. at 6. He added that “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7. He continued that citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6. As we can see, Ramsay put forth a definition of a “natural born Citizen” that only depended upon the child being born to U.S. citizen parents with no mention of place of birth;

(2) The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Chief Justice John Marshall, concurring and dissenting for other reasons, cited Vattel and provided his definition of natural born citizens and said: “Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says ‘The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights’”);

(3) Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 3 Pet. 99, 7 L.Ed. 617 (1830) (the majority, which included Chief Justice John Marshall, cited Vattel on the right of election to change one’s allegiance and thus citizenship in the context of the new nation being formed after revolution. The Court found on principles consistent with Vattel’s jus sanguinis and not on the English common law rule of jus soli, that simply being born in New York, after July 4, 1776 and before September 15, 1776, when the British took possession of New York, was not sufficient to establish one’s status as an American citizen, for a child of minor years is incapacitated from making any citizenship election but rather followed the citizenship held or chosen by the father. On the contrary, relying upon principles of the English common law, Justice Johnson and Justice Story, who wrote separate minority concurring opinions, would have found the child born in New York during the same time period a citizen of the State of New York or American citizen, respectively, regardless of the citizenship of his parents. Id. 136 and 164. This case shows what the majority rule was on citizenship and that it followed the Vattelian doctrine that a child when born took on the national character of his or her father (meaning father and mother under the doctrine of merger of the wife’s citizenship into the husband) and did not acquire his or her citizenship from the territory in which he or she was born);

(4) Dred Scott v. Sandford, 60 U.S. 393 (1857) (Justice Daniels concurring cited Vattel and The Law of Nations and provided his definition of natural born citizens and took out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively, and stated: “’The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.’ Again: ‘I say, to be of the country, it is necessary to be born of a person who is a citizen; for if he be born there of a foreigner, it will be only the place of his birth, and not his country. . . .’”);

(5) Minor v. Happersett, 88 U.S. (21 Wall.) 162, 167-68 (1875) (providing the same Vattelian definition without citing Vattel, and not in any way referring to the English common law, stated: “The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.” Id., 169 U.S. at 679-80);

(6) United States v. Wong Kim Ark 169 U.S. 649, 693 (1898) (a “citizen of the United States” under the Fourteenth Amendment is a child born or naturalized in the United States and “subject to the jurisdiction thereof” but an Article II “natural born Citizen” is a child born in the United States to citizen parents, citing and quoting Minor v. Happersett for that definition. The question that Minor did not answer was answered by Wong Kim Ark, wherein the United States argued that a child born in the U.S. to alien parents was not a “citizen of the United States” under the 14th Amendment. Ruling against the government, Wong Kim Ark declared a child born in the country to alien parents to be a “citizen of the United States” under the 14th Amendment. Wong Kim Ark, citing and quoting Minor and acknowledging its definition that a “natural-born citizen” was born in the country to citizen parents, in no way disturbed Minor’s definition of a “natural-born citizen,” for it was asked to decide only if Wong was a “citizen of the United States” under the 14th Amendment. Wong Kim Ark also allowed Wong to be a 14th Amendment “citizen of the United States” because it found that his parents, while not U.S. citizens, were, among other things, domiciliaries, residents of the United States, and not working in some foreign diplomatic capacity and therefore “subject to the jurisdiction” of the United States. So Wong decided only the “citizen” part of Wong’s status. It never decided whether he also had the “natural born” part. The Court cautioned in its opinion in the beginning and at its end that it was only deciding whether Wong was a “citizen of the United States” under the 14th Amendment and also informed us under what limited conditions (born in the U.S. to alien parents who were domiciled and residing in the U.S. and not employed in some foreign diplomatic capacity) it ruled that he was so); and

(7) Perkins v. Elg, 307 U.S. 325 (1939) (confirmed that a child born in the United States to a naturalized U.S. citizen father and naturalized citizen mother, the mother being derivatively naturalized by marrying a U.S. citizen, was a “natural born Citizen.”

Donald Trump has expressed some interest in running for President in 2012. We have recently seen some commentators say that Trump is not a “natural born Citizen.” The question now is whether they are correct? Trump was born on June 14, 1946, in New York to U.S. citizen parents. He is therefore a “natural born Citizen.” His father, Fred C. Trump, was born on October 11, 1905, in New York, New York. His mother, Mary Anne (Mac Leod) Trump, was born on May 10, 1912, in Stornoway, Scotland. Trumps father was a U.S. citizen when he married Trump’s mother, who at that time had not yet naturalized to be a U.S. citizen. Trump was born in the United States thereafter. Under merger of the husband’s citizenship into that of the wife which was the doctrine existing at the time the Constitution was adopted and under Elg, this makes Trump a “natural born Citizen.”

In 1924, the Congress passed the Married Women’s Act, also known as the Cable Act. This act gave each woman a nationality of her own. Under this act, an alien woman who married a U.S. citizen did not need to file a declaration of intention to become a U.S. citizen. She needed only to file a naturalization petition to become a U.S. citizen. Given their dates of birth, Trump’s parents most probably married after 1924, the year the Cable Act was passed. Hence, Trump’s mother would have had to naturalize on her own to acquire U.S. citizenship. Trump’s mother naturalized to be a U.S. citizen on her own on March 10, 1942, which is over 4 years before Trump was born. Hence, when Trump was born, both his parents were “citizens of the United States.” These birth circumstances make Trump a “natural born Citizen.” See http://www.thebirthers.org/misc/trumped.html for screen shots of the supporting documentation which shows that Donald Trump is a “natural born Citizen.”

Putative President Barrack Obama might also run for re-election in 2012. While our legal and political institutions have allowed Obama to escape having to prove that he is a “natural born Citizen,” he will not be able to do the same when running for re-election in 2012. Hence, the question still remains whether Obama is a “natural born Citizen.” As I have stated repeatedly in the past, I cannot conclude that Obama is a “natural born Citizen.” Obama fails to meet the “natural born Citizen” eligibility test because when he was born in 1961 (wherever that may be), he was not born to a United States citizen father and mother.

There are two open issues regarding whether putative President Obama is eligible to be President. One is place of birth. Consider that in all the law suits filed against Obama and others on the place of birth issue, including the Kerchner v. Obama/Congress law suit (which also argued that regardless of place of birth, Obama is not and cannot be a “natural born Citizen” because he was not born in the United States to a U.S. citizen father and mother), Obama never once produced any birth certificate (neither his Certification of Live Birth known as the COLB nor his long-form, hospital generated Certificate of Live Birth) for the court which would have put an end to the birth place issue. Why did he pursue a legal strategy (e.g. standing, political question, and other justiciability defenses) which only worked in the short term rather than just produce the birth certificate which would finally end the birth place controversy?

Why spend so much private and public money and resources fighting the same issue over and over again? Even now, over two years after the 2008 election, we see the same place of birth issue raised in various contexts. It has risen in the military context with LTC Terry Lakin, who is serving 6 months in federal prison for defending the Constitution by wanting to assure that Obama is a “natural born Citizen.” We see it in ObamaCare litigation. Now some states are also moving to require proof of birth as part of a presidential candidate’s requirements to get on the ballot. Officials with the National Conference of State Legislatures report that 10 states already have some sort of requirement to prove eligibility. There is Arizona’s H.B. 2177 and S.B. 1157, Connecticut’s SB391, Georgia’s HB37, Indiana’s SB114, Maine’s LD34, Missouri’s HB283, Montana’s HB205, Nebraska’s LB654, Oklahoma’s SB91, SB384 and SB540, and Texas; HB295 and HB529. With Texas’ 34 votes, these states possess 107 Electoral College votes. http://www.wnd.com/index.php?fa=PAGE.printable&pageId=258585 .

Hawaii Governor Abercrombie has recently revived the birth place issue, vowing to find the birth certificate and put an end to the debate. But we have seen that he found no birth certificate. Now Donald Trump has publicly announced that Obama should do the right and simple thing and just release his long form, hospital generated birth certificate.

So, there is no end to the issue of Obama’s place of birth. Should we not blame Obama himself for this issue still existing? After all, the Constitution says that he must be a “natural born Citizen.” Is not the burden on him to satisfy that requirement? The question of where Obama was born is not a distraction, for it only takes 10 minutes and $10.00 to resolve (the amount of time and money needed to produce his real birth certificate).

Why has Obama allowed this issue to continue unabated? Why have all the Department of Justice attorneys repeatedly taken the same approach in defending Obama, i.e., fighting jurisdiction (standing) and raising any other justiciability defense? Why have they fought so hard to prevent any litigant to have discovery so that a copy of the birth certificate could be obtained? Why have they to this day never produced a copy of any birth certificate in any court which would have put an end to the birth place issue not only in that court but in all other courts present and in the future?

While the courts have not been too kind to the “birthers,” why has not one court even mentioned the fact that not one court in the whole nation has yet to see Obama’s alleged birth certificate?

But apart from the place of birth issue, we also have the question of whether Obama is an Article II “natural born Citizen.” Assuming that he was born in Hawaii and also assuming that his parents are who he says they are, does Obama meet the definition of an Article II “natural born Citizen?” At his birth, his mother was a United States citizen. But under the British Nationality Act of 1948, his father, who was born in the British colony of Kenya, was born a Citizen of the United Kingdom and Colonies (CUKC) which under that same law and by descent made Obama himself a CUKC. Prior to Obama’s birth, Obama’s father neither intended to nor did he become a United States citizen. Being temporarily in the United States only for purpose of study and with the intent to return to Kenya, his father did not intend to nor did he become even a legal resident or immigrant to the United States.

The U.S. State Department has confirmed that Obama was born with dual allegiances. Leventhal cites FactCheck.org to state, “Obama was originally both a U.S. citizen and a citizen of the United Kingdom and Colonies from 1961 to 1963 given that his father was from Kenya, which gained its independence from the British Empire in 1963. Upon independence, Obama became both a U.S. and Kenyan citizen from 1963 to 1982 [sic should be 1984], and solely a U.S. citizen after that.” The entry “The Obama Birth Controversy” was written by Todd Leventhal, the chief of the Counter-Misinformation Team for the U.S. Department of State.

Obama may be a plain born “citizen of the United States” under the 14th Amendment or a Congressional Act (if he was born in Hawaii). But he is not an Article II “natural born Citizen,” for upon Obama’s birth his father was a British subject and Obama himself by descent was also the same. Hence, Obama was born subject to a foreign power. Obama lacks the birth status of natural sole and absolute allegiance and loyalty to the United States which only the President and Commander in Chief of the Military and Vice President must have at the time of birth. Being born subject to a foreign power, he lacks sole allegiance and unity of citizenship to the United States from the time of birth which assures that required degree of natural sole and absolute birth allegiance and loyalty to the United States from birth, a trait that is constitutionally indispensable in a President and Commander in Chief of the Military. Like a naturalized citizen, who despite taking an oath later in life to having sole allegiance to the United States cannot be President because of being born subject to a foreign power, Obama too cannot be President.

Mario Apuzzo, Esq.
March 31, 2011
http://puzo1.blogspot.com/
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Copyright © 2011
Mario Apuzzo, Esq.
All Rights Reserved

March 11, 2011

>The States Have the Constitutional Power to Pass Legislation Prescribing Presidential Ballot Access Requirements Including Determining Whether a Candidate Meets the Eligibility Requirements of Article II, Section 1, Clause 5

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The States Have the Constitutional Power to Pass Legislation Prescribing Presidential Ballot Access Requirements Including Determining Whether a Candidate Meets the Eligibility Requirements of Article II, Section 1, Clause 5

by Mario Apuzzo, Esq.
March 11, 2011

Article II, Section 1 of the U.S. Constitution tells us that the Electoral College is the mechanism used to elect the President. 3 U.S.C. Sec. 4. Article II, Section 1 also tells us how the Electoral College is filled. It says that the states shall appoint the electors who will make up the Electoral College, determining the manner of electing them and the quantity to be elected. The rest of Article II, Section 1 was changed by the Twelfth Amendment which now prescribes how the voting is done, the votes are tallied and transmitted to Congress, and Congress confirms those votes and declares who shall be President. Further state authority over federal elections is found in Article I, Section 4, Clause 1, which delegates to the state legislatures the initial authority for the “Times, Places and Manner” of elections to Congress, with Congress having residual authority to make such regulations. Hence, the Constitution gives to the states the authority over federal elections and specifically to appoint its electors and decide how their votes are processed for the purpose of determining who shall be President. There is therefore no question that states have the power to run their own presidential and vice-presidential elections. Storer v. Brown, 415 U.S. 724, 730 (1974) (the Election Clause, Article I, Section 4, Clause 1 which applies to Congress was intended to grant states authority to protect the integrity and regularity of the election process by regulating election procedure). As part of that process, states must also have the authority over who shall be placed on any ballot to run for president and vice-president.

This state mechanism has been recently confirmed by an April 3, 2009 Congressional Research Service Memo by Legislative Attorney, Jack Maskell, entitled, “Qualifications for the Office of President of the United States and Legal Challenges to the Eligibility of a Candidate,” wherein he stated:

“The mechanics of elections of federal officials within the several states are administered under state law. [footnote 4] The quadrennial presidential election, although required since 1845 to be held on the same day in each state [footnote 5] is, in an administrative and operational sense, fifty-one separate elections in the states and the District of Columbia for presidential electors. States generally control, within the applicable constitutional parameters, the administrative issues, questions, and mechanisms of ballot placement and ballot access. [footnote 6]

State election officials under some state ballot laws might thus require candidate “statements” or “declarations” of candidacy attesting to and/or certifying certain facts as a condition to be on the ballot; in other states, representatives of the established political parties may certify names to the Secretary of State, or the designated elections official may place viable or “recognized” candidates on the presidential preference ballots. [footnote 7] In such cases, opposing political candidates or political parties may have “standing” to legally challenge the placement of a name of an opponent on the ballot, [footnote 8] or state law may specifically provide for a procedure for timely protests to be filed concerning the qualifications of candidates. [footnote 9] Additionally, the relevant election official in the state, such as the Secretary of State, may have authority to exercise discretion to challenge a self-certification or a certification by a political party of a candidate whom the election official believes is not eligible for the office. It would appear to be a matter of state law and interpretation as to whether election officials in a particular state have discretionary authority to question the certification of a party’s nominated candidate, or even a self-certification of a candidate, if such election officials were presented with actual probative, documentary evidence to rebut any presumed or self-certified eligibility. In Keyes v. Bowen, the California Supreme Court dismissed a suit against the Secretary of State which challenged President Obama’s eligibility and the California electoral votes for him, finding that: “Petitioners have not identified any authority requiring the Secretary of State to make an inquiry into or demand detailed proof of citizenship from Presidential candidates,” and thus mandamus (a writ of mandate) was not granted. [footnote 10] However, although no “ministerial duty” or mandatory requirement exists to support a mandamus action, there may still exist discretionary authority in such elections official.” [footnote 11]. 11 See, for example, unreported case of Cleaver v Jordan, Case no. 7838 (Calif. Supreme Court minutes, Sep. 26, 1968), cert. denied, 393 U.S. 810 (1968), where California court reportedly upheld discretionary authority of Secretary of State not to list ineligible candidate for President on the ballot; and Jenness v Brown, also unreported, case no. civil 72-204 (S.D. Ohio Sep. 27, 1972), concerning ballot placement of an ineligible candidate in Ohio.”

But the states’ power to regulate election procedure is not without limitations. As the Court explained in Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006):

“States, through the Elections Clause, exercise some regulatory authority over federal elections because “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Storer, 415 U.S. at 730. This authority, however, is not unlimited. Any regulation of time, place, and manner must not violate other portions of the Constitution. See, e.g., Smith v. Allwright, 321 U.S. 649, 661-62, 64 S. Ct. 757, 88 L. Ed. 987 (1944) (“Texas is free to conduct her elections and limit her electorate as she may deem wise, save only as her action may be affected by the prohibitions of the United States Constitution . . . .”). In addition, “while states enjoy a wide latitude in regulating elections and in controlling ballot content and ballot access, they must exercise this power in a reasonable, nondiscriminatory, politically neutral fashion.” Miller v. Moore, 169 F.3d 1119, 1125 (8th Cir. 1999).” Id. at 590.

Discussing the qualification clause for Representatives and Senators found at Article I, Section 3, Clause 3 and Article I, Section 2, Clause 2, respectively, in U.S. Term Limits v. Thornton, 514 U.S. 779 (1995), the U.S. Supreme Court stated that “the text and structure of the Constitution, the relevant historical materials, and, most importantly, the ‘basic principles of our democratic system’ all demonstrate that the Qualifications Clauses were intended to preclude the States from exercising any such power and to fix as exclusive the qualifications in the Constitution.” The Court said that a state has no authority to change, add to, or diminish the age, citizenship, and residency requirements for members of Congress specified in their Qualification Clause found at Article I, Section 2, Clause 2 and Article I, Section 3, Clause 3. See also Powell v. McCormack, 395 U.S. 486 (1969) (relying on historical analysis and democratic principles held that the qualifications for Congress are “fixed” in the Constitution and cannot be supplemented by Congress). As Congress is limited in changing, adding to, or diminishing constitutional eligibility requirements for members of Congress, so are the states. See Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006) (same). The same reasoning would necessarily apply to the Presidential eligibility clause found at Article II, Section 1, Clause 5. Under well-established precedent, this qualification clause is exclusive and cannot be changed by a state in definition or application in a way that is contrary to the Constitution. Id. at 589. So we can see that states are not allowed to make their own definitions of eligibility for public office which violate the Constitution. A state can only apply that definition for eligibility as is prescribed by the applicable qualification clause of the Constitution.

“If a statute is unconstitutional as applied, the State may continue to enforce the statute in different circumstances where it is not unconstitutional, but if a statute is unconstitutional on its face, the State may not enforce the statute under any circumstances.” Women’s Medical Professional Corp. v. Voinovich, 130 F.3d 187, 193 (6th Cir. 1997). In deciding who shall get on its election ballot, a state has to also make sure that it also complies with its own state statutes and laws. Texas Democratic Party, 459 F.3d at 592.

Mr. Maskell states in his CRS memo that there is no “formal administrative or legal requirement or oversight at the federal level, or specific state requirement to produce a birth certificate for ballot placement.” Hence, several states are now working on legislation the purpose of which is to make sure that presidential candidates who would win an election and assume the Office of President and Vice-President are eligible to hold those offices under Article II, Section 1, Clause 5. As we know, under the “natural born Citizen” clause, no one who is not a “natural born Citizen“, 35 years old, and a 14-year resident may be President. Since the federal government does not require it, the states should demand to see documentary evidence showing that a candidate who intends not only to run for such office but also to assume the powers of that office should he or she win the election meets those three requirements and is therefore qualified according to the Constitution. On being a “natural born Citizen” and for those candidates who may have been born in a hospital, that would include, but not be limited to, the candidate producing a certified true copy of a valid long-form birth certificate which contains corroborating information which will enable the state to reasonably conclude that the candidate was born in the specified place and time. Such a requirement is within its powers to protect the integrity and regularity of the election.

Notwithstanding whatever powers the states may have retained under the Tenth Amendment, states cannot alter or add to the meaning of a “natural born Citizen.” As U.S. Term Limits explained in the context of qualifications for Congress, “[f]irst, we conclude that the power to add qualifications is not within the ‘original powers’ of the States, and thus is not reserved to the States by the Tenth Amendment. Second, even if States possessed some original power in this area, we conclude that the Framers intended [801] the Constitution to be the exclusive source of qualifications for Members of Congress, and that the Framers thereby “divested” States of any power to add qualifications. Id. at 800-01. Indeed, states cannot prescribe a presidential eligibility requirement that goes over and above that included in Article II, Section 1, Clause 5 itself. To do so would be unconstitutional. United States Term Limits, 514 U.S. at 807.

The Constitution does not provide a definition of the “natural born Citizen” clause. Nevertheless, the states can define the “natural born Citizen” clause based on:

(1) the text and structure of the Article II, Section 1, Clause 5 and other parts of the Constitution;

(2) the Founders’ and Framers’ intent in inserting the “natural born Citizen” clause in the Constitution which was for the safety and preservation of the nation by excluding foreign allegiance, influence, and attachment from the Office of President and Commander in Chief of the Military. On July 25, 1787, John Jay wrote a letter to General Washington, who was acting as president of the Constitutional Convention, stating: “Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen” (“born” underlined in the original). http://rs6.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr00379%29%29 . On September 2, 1787, George Washington wrote a letter to John Jay the last line of which read: “I thank you for the hints contained in your letter.” http://www.consource.org/index.asp?bid=582&fid=600&documentid=71483 . On September 4, 1787, about 6 weeks after Jay’s letter and just 2 days after Washington wrote back to Jay, the “natural born Citizen” requirement appeared in the draft of the Constitution. The proposal passed unanimously without debate which does not mean that the proposal was not discussed, for the convention meetings were conducted in secrecy. From the chronology of these events, we can conclude that it was probably Jay’s letter to Washington and his concern about foreign influence infecting the office of the Commander in Chief which motivated the Founders and Framers to insert the clause as part of the eligibility requirements to be President and Commander in Chief.

(3) relevant historical materials such as Emer de Vattel’s, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758), who told us: “The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see, whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country.”

Another historical reference is Founder historian, David Ramsay, who in his A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789) told us that after July 4, 1776, birthright citizenship was preserved only for a child born to U.S. citizens, making no mention of place of birth. In his 1789 article, Ramsay first explained who the “original citizens” were and then defined the “natural born citizens” as the children born to citizen parents. He said concerning the children born after the declaration of independence, “[c]itizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens….” Id. at 6. He added that “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7. He continued that citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6. As we can see, Ramsay put forth a definition of a “natural born Citizen” that only depended upon the child being born to U.S. citizen parents with no mention of place of birth;

(4) interpretation of early Congressional Acts such as the Naturalization Acts of 1790, 1795, and others that followed. These Acts did not distinguish whether the child born to an alien was born in or out of the United States. In either case, the child was not a U.S. citizen and had to naturalize, either derivatively from the naturalizing parent if done before the child reached the age of majority or on his or her own if done thereafter. Since wives followed the national character of their husbands, this law meant that the father of a child born in the U.S. would have to naturalize which would cause both his child and his wife to then become “citizens of the United States,” not “natural born Citizens.  Also note that the 1790 Act used the language “natural born citizen” and the 1795 Act repealed the 1795 Act and replaced that clause with “citizen of the United States.”  This clearly shows that the early Congresses, which included many Founders and Framers, recognized the critical difference between a “natural born Citizen” and a “citizen of the United States.  Additionally, Congress never again used the clause “natural born Citizen” in any of its Acts including the Civil Rights Act of 1866 and the 14th Amendmen, using rather the clause “citizen of the United States;” and

(5) case precedent of the U.S. Supreme Court such as:

The Venus, 12 U.S. (8 Cranch) 253, 289 (1814): Chief Justice John Marshall, concurring and dissenting for other reasons, cited Vattel and provided his definition of natural born citizens and said: “Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says ‘The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.’”

Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 3 Pet. 99, 7 L.Ed. 617 (1830): The majority, which included Chief Justice John Marshall, cited Vattel on the right of election to change one’s allegiance and thus citizenship in the context of the new nation being formed after revolution. The Court found on principles consistent with Vattel’s jus sanguinis and not on the English common law rule of jus soli, that simply being born in New York, after July 4, 1776 and before September 15, 1776, when the British took possession of New York, was not sufficient to establish one’s status as an American citizen, for a child of minor years is incapacitated from making any citizenship election but rather followed the citizenship held or chosen by the father. On the contrary, relying upon principles of the English common law, Justice Johnson and Justice Story, who wrote separate minority concurring opinions, would have found the child born in New York during the same time period a citizen of the State of New York or American citizen, respectively, regardless of the citizenship of his parents. Id. 136 and 164. This case shows what the majority rule was on citizenship and that it followed the Vattelian doctrine that a child when born took on the national character of his or her father (meaning father and mother under the doctrine of merger of the wife’s citizenship into the husband) and did not acquire his or her citizenship from the territory in which he or she was born.

Dred Scott v. Sandford, 60 U.S. 393 (1857): Justice Daniels concurring cited Vattel and The Law of Nations and provided his definition of natural born citizens and took out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively, and stated: “The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.” Again: I say, to be of the country, it is necessary to be born of a person who is a citizen; for if he be born there of a foreigner, it will be only the place of his birth, and not his country. . . .”

Minor v. Happersett, 88 U.S. 162, 167-68 (1875): Providing the same Vattelian definition without citing Vattel, and not in any way referring to the English common law, stated: “The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.” Id., 169 U.S. at 679-80 (emphasis supplied).

Minor did not cite Vattel but as can be seen the Court’s definition of a “citizen” and a “natural-born citizen” are taken directly out of Vattel’s The Law of Nations, Section 212. Hence, when Minor said “common law,” it was not referring to the English common law but rather to American common law which had its basis in citizenship matters in natural law and the law of nations. Minor also distinguished between “natural-born citizens” and “citizens.” When Minor spoke of the common law, it referred to the “citizens” and the “natives or natural-born citizens,” explaining that there never has been any doubts that the children born in the country to “citizens” were the “natives or natural-born citizens.” Since Minor was being asked to apply the 14th Amendment, it then applied the common law rule to the 14th Amendment which only speaks of “citizens” and not “natives or natural-born citizens.” It then concluded that any person who is a “natural-born citizen” is necessarily also a “citizen.” The Court, was not, however, willing to go as far as to say that a child born in the country to parents who were not U.S. citizens was even a “citizen” under the 14th Amendment, let alone a “natural-born citizen.” The Court added that “there have been doubts” as to whether that child is even a “citizen.” Having decided that such a child is not a “natural-born citizen,” it left the question of whether such a child is a “citizen of the United States” under the 14th Amendment to another day.

It is important to understand that if the English common law prevailed in the United States to define national citizenship, the Court would not have stated that “there have been doubts” whether children born in the country to alien parents were citizens. Under English common law, there was no doubt that such children would have been “natural born subjects,” for under that law the citizenship of the parents was not a factor in determining subjectship when the child was born in the dominion of the King.

So Minor told us that a child born in the U.S. to non-U.S. citizen parents is not a “natural-born citizen” and that it was not necessary for it to decide whether that child was a “citizen” under the 14th Amendment because the plaintiff was born in the country to U.S. citizen parents, making her an Article II “natural-born citizen.” What is important about Minor is that the U.S. Supreme Court told us that the definition of a “natural born Citizen” is not contained in the Constitution, including the 14th Amendment, nor in any Act of Congress.  Rather, Minor defined a “natural born Citizen” under American common law which as we can see was based on natural law and the law of nations as presented by Vattel in Sections 212-217 of The Law of Nations and not under the English common law.  It also told us by implication that a child born in the country to parents who are not U.S. citizens is not a “natural-born citizen” and expressly told us that “there have been doubts” as to whether such a child is even a “citizen” under the 14th Amendment. If “there have been doubts” as to whether such a child was a “citizen” under the 14th Amendment, then given that purusant to the grandfather clause of Article II, Section 1, Clause 5 the standard to be a “natural born citizen” was higher than that to be just a “citizen,” there is no way that such a child could be a “natural-born citizen.” After all, if one cannot satisfy the requirements to be a “citizen,” one surely cannot satisfy the requirements to be a “natural-born citizen.”

U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898): The question that Minor did not answer was answered by U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898), in which the United States argued that a child born in the U.S. to alien parents was not a “citizen of the United States” under the 14th Amendment. Ruling against the government, Wong Kim Ark declared a child born in the country to alien parents to be a “citizen of the United States” under the 14th Amendment. Wong Kim Ark, citing and quoting Minor and acknowledging its definition that a “natural-born citizen” was born in the country to citizen parents, in no way disturbed Minor’s definition of a “natural-born citizen,” for it was asked to decide only if Wong was a “citizen of the United States” under the 14th Amendment. Wong Kim Ark also allowed Wong to be a 14th Amendment “citizen of the United States” because it found that his parents, while not U.S. citizens, were, among other things, domiciliaries, residents of the United States, and not working in some foreign diplomatic capacity and therefore “subject to the jurisdiction” of the United States. So Wong decided only the “citizen” part of Wong’s status. It never decided whether he also had the “natural born” part. The Court cautioned in its opinion in the beginning and at its end that it was only deciding whether Wong was a “citizen of the United States” under the 14th Amendment and also informed us under what limited conditions (born in the U.S. to alien parents who were domiciled and residing in the U.S. and not employed in some foreign diplomatic capacity) it ruled that he was so.

Perkins v. Elg, 307 U.S. 325 (1939): Other than Minor v. Happersett, Perkins is the only Supreme Court decision to declare someone a “natural born Citizen.” The person was born in the United States to a naturalized U.S. citizen father and citizen mother through derivative citizenship.

The last word on the meaning of a “natural born Citizen” was provided by Minor v. Happersett. It is important to note that the Court decided Minor after the Fourteenth Amendment was passed which tells us that the Court gave us that definition knowing that the Fourteenth Amendment defined a “citizen of the United States” and not a “natural born Citizen.” This same definition had been stated by Rep. John Bingham, who in the House on March 9, 1866, in commenting on the Civil Rights Act of 1866 which was the precursor to the Fourteenth Amendment, stated Vattel’s definition thus: “[I] find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. . . . ” John A. Bingham, (R-Ohio) US Congressman, March 9, 1866 Cong. Globe, 39th, 1st Sess., 1291 (1866), Sec. 1992 of U.S. Revised Statutes (1866). As we have seen, this definition was confirmed in U.S. v. Wong Kim Ark. Our Supreme Court has never changed this American common law definition and it prevails today. For more information on the meaning of a “natural born Citizen,” please see the many essays on its meaning at http://puzo1.blogspot.com and at http://www.protectourliberty.org.

While the Constitution does not define a “natural born Citizen,” the states can apply the definition of the “natural born Citizen” clause in keeping with the sources stated herein. What is imperative is that the states apply the “natural born Citizen” clause as intended by the Constitution. See Matter of Kryzan v. New York State Bd. of Elections, 2008 NY Slip Op 8354, 55 A.D.3d 1217, 865 N.Y.S.2d 793, 2008 N.Y. App. Div. LEXIS 8129 (the only requirement of New York’s election law that the candidate be a resident of the State did not violate the Constitution’s Congressional Qualification Clause). Applying the “natural born Citizen” clause in keeping with the Constitution will not violate the fundamental principle identified in Powell that in our representative form of government “the people should choose whom they please to govern them.” Powell, 395 U.S. at 547. Applying the “natural born Citizen” clause pursuant to U.S. Supreme Court precedent and other sources herein identified does not create an absolute bar to any one person or a class thereof being able to be President any more than the Constitution itself requires.

The 2008 presidential election presented us with a situation in which putative President Obama has assumed and currently holds the great and singular civil and military powers of the President and Commander in Chief without proper vetting by our media and political institutions. To this date, even though there are millions of concerned Americans asking that Mr. Obama release to the public a certified copy of his long-form, hospital generated birth certificate which would conclusively prove that he was born in Hawaii, he just refuses to do so. These Americans are not satisfied with the electronic image of an alleged 2007 short-form Certification of Live Birth that Obama posted on the internet in 2008. Apart from the question of whether this computer image is authentic, this computer image does not contain the name of the birth hospital, the name of the delivery doctor, and names and signatures of persons who witnessed the birth in Hawaii. The State of Hawaii and the alleged birth hospital, Kapi’olani Medical Center for Women & Children (formerly known as Kapi’olani Maternity & Gynecological Hospital and which has neither affirmed nor denied Obama’s birth there), have also announced publicly that they cannot release Obama’s long-form, hospital generated birth certificate because of federal and state privacy laws and Obama has not given his consent to the release. How can our nation have gotten to the point where a person has been allowed to assume these great powers without having revealed to the people he is supposed to serve the necessary documents which would conclusively show that he was in fact born in Hawaii as he claims? How can a presidential candidate have any reasonable expectation of privacy in his or her birth certificate if the Constitution demands that the President be a “natural born Citizen?” Moreover, Mr. Obama was born a British subject/citizen and a “citizen of the United States” if born in Hawaii. Neither the federal authorities nor the states questioned whether a person born subject to a foreign allegiance, influence, and power can be an Article II “natural born Citizen.” The states which have a constitutional duty to protect their citizens simply cannot allow a repeat of such a scenario to occur in the 2012 presidential election.

If any candidate feels damaged by a state’s application of the “natural born Citizen” clause, let that candidate file an action against the state and let the courts decide the issue. A court having to decide the issue will have to examine as the state would have done in applying the “natural born Citizen” clause the text and structure of the Constitution, the Founders’ and Framers’ intent in inserting the “natural born Citizen” clause in the Constitution, relevant historical materials, and case precedent of the U.S. Supreme Court.

Mario Apuzzo, Esq.
March 11, 2011
Revised March 12, 2011
http://puzo1.blogspot.com/
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Mario Apuzzo, Esq.
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