2012-05-04 - mdec memo in support of motion for jop with exhibits

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

JACKSON DIVISION

DR. ORLY TAITZ, ESQ., BRIAN FEDORKA, PLAINTIFFS

LAURIE ROTH, LEAH LAX, and TOM

MacLERAN

VS. CIVIL ACTION NO. 3:12-cv-280 HTW-LRA

DEMOCRAT PARTY OF MISSISSIPPI, DEFENDANTS

SECRETARY OF STATE MISSISSIPPI,

BARAK HUSSEIN OBAMA, OBAMA

FOR AMERICA, NANCI PELOSI,

DR. ALVIN ONAKA, LORETTA FUDDY,

MICHAEL ASTRUE, JOHN DOES, JOHN

DOES 1-100

MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE’S

MEMORANDUM BRIEF OF AUTHORITIES IN SUPPORT OF

MOTION FOR JUDGMENT ON THE PLEADINGS

COMES NOW the Defendant, the Mississippi Democratic Party, through its governing entity, the

Mississippi Democratic Party Executive Committee (“MDEC”), and by and through its undersigned

counsel and, pursuant to Fed. R. Civ. P. 12(c) and L. U. Civ. R. 7(b)(4), hereby provides the Court with its

Memorandum of Authorities in support of its Motion for Judgment on the Pleadings, as follows:

BACKGROUND

1. On February 14, 2012 Orly Taitz, a California resident and licensed attorney in that state, filed a

petition in the Circuit Court of the First Judicial District of Hinds County, Mississippi against the

Mississippi Democratic Party and the Secretary of State of Mississippi seeking a declaration that the

President of the United States, Barack Hussein Obama, is not constitutionally eligible to hold the

office of President of the United States because he is not a “natural born citizen” of the United States,

as required by Article 2, Section 1 of the United States Constitution. [Original Circuit Court Petition,

Case 3:12-cv-00280-HTW-LRA Document 16 Filed 05/04/12 of 24

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Docket No. 6, p.p. 18-26]. Taitz’s original state court petition further sought injunctive relief to block

President Obama from appearing on the ballot for the Mississippi Democratic presidential preference

primary election, which was to be held on March 13, 2012. Taitz’s original court petition further

accuses President Obama of election fraud arising from his use of a fraudulent social security number

and a fraudulent birth certificate. Taitz’s original court petition cites Miss. Code Ann. § 23-15-961 as

the jurisdictional basis for bringing her action in the Hinds County Circuit Court, which is the

procedure for an aggrieved party to challenge the qualifications of a candidate in Mississippi seeking

to be elected to state office by first becoming a candidate in the party primary election.

2. Both the Democratic Party Executive Committee and the Mississippi Secretary of State filed motions

in the Circuit Court to dismiss Taitz’s petition on numerous grounds, including: (a) that it was

untimely under Section 23-15-961, (b) that the Plaintiff was not an “aggrieved party” under Section

23-15-961 and otherwise lacked standing to bring her action in the Circuit Court of Hinds County,

Mississippi, and (c) that neither the Mississippi Secretary of State nor the Mississippi Democratic

Party Executive Committee had any duty under the governing statute for presidential preference

primaries, Miss. Code Ann. § 23-15-1089, to determine a presidential candidate’s qualifications, other

than the Secretary of State’s limited role in identifying “generally recognized” candidates for

President to be placed on the party primary ballot.

3. On April 19, 2012 Taitz, along with four additional Plaintiffs, filed the First Amended Complaint

(“FAC”) with the Circuit Court, seeking, inter alia, to enjoin Barack Obama from appearing on the

Mississippi 2012 general election ballot as a candidate for President of the United States.1 In addition

1 While several “Plaintiffs” purportedly joined Taitz, who was the original sole plaintiff, only three such Plaintiffs have signed

the FAC according to the Court Record. (See Docket No. 6-14 at 29 (Mr. Fedorka’s signature page) and Docket No. 6-14 at 30 (Mr. Mac Leran’s signature page). Moreover, none of the other purported Plaintiffs has provided contact information or

responded in any way to defendant MDEC’s counsel’s request that they confirm they are proceeding in this action pro se and

that they will provide signed pleadings and proper contact information. Additionally, each and every email sent to Plaintiff

MacLeran has “bounced back” to the undersigned counsel. (The only contact information was e-mail addresses.) Taitz is an

attorney with a history of attempting to represent Plaintiffs challenging President Obama’s eligibility in states where she is not


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to the Mississippi Democratic Party and the Secretary of State of Mississippi, Taitz and the new

Plaintiffs named as defendants President Obama, Obama for America (the President’s principal

political campaign committee), Nancy Pelosi (now the minority leader of the U.S. House of

Representatives and former chair of the 2008 Democratic National Convention), Dr. Alvin Onaka

(Registrar of the Hawaii Department of Health), Loretta Fuddy (Director of the Hawaii Department of

Health) and Michael Astrue (Commissioner of the United States Social Security Administration).

The FAC cited Miss. Code Ann. § 23-15-963, which is the procedure for challenging a candidate who

filed to run in the general election, as the basis for the new challenge to President Obama’s candidacy

for President in the November 2012 election in Mississippi. The FAC also added a federal RICO

cause of action against the Mississippi Democratic Party and the new defendants, but not the Secretary

of State. As of this date, none of the new defendants have been served with process or otherwise

appeared in the case.

4. The Secretary of State, joined by the MDEC, removed Plaintiffs’ civil action to this Honorable Court

based on the existence of a federal question arising from the federal RICO claim included for the first

time in the FAC.

licensed to practice law. See, e.g., Rhodes v. MacDonald, 670 F. Supp.2d 1363, 1368 (11th Cir. 2009) (“Because of the alleged urgent nature of the request, the Court waived its local rule that requires counsel admitted pro hac vice to associate local

counsel. It became apparent during the hearing on the motion that the Court's waiver of this local rule was a mistake as counsel

abused her pro hac vice privileges.”); Farrar v. Obama, No. 2012CV211398 (Ga. Fulton County Super. Ct. Feb. 15, 2012)

(denying Taitz’s request for admission pro hac vice for failure to comply with rules applicable to same). As such, further

references to “Plaintiffs” is without prejudice to MDEC’s contention that Taitz is the only actual plaintiff, for the reasons stated.


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THE SUIT IS TIME BARRED UNDER MISSISSIPPI ELECTION LAW

5. Plaintiffs’ FAC seeks to challenge the qualifications of President Obama as a candidate running on the

general election ballot for President in 2012. Plaintiffs rely on Miss. Code Ann. § 23-15-963.

However, Section 23-15-963 only applies to independent (not political party) candidates who

qualified for office by obtaining the signatures of qualified electors on a petition. President Obama,

who is seeking the Democratic nomination, would not even be subject to this statue since he is not

running as an independent.

6. The only possible procedure to challenge the qualifications of a candidate running in a party primary

in Mississippi is under Miss. Code Ann. § 23-15-961, which, as noted above, was used by Taitz as the

jurisdictional basis for filing the original petition in Hinds County Circuit Court on February 12, 2012.

7. However, assuming, arguendo, that Miss. Code Ann. § 23-15-963 is applicable in challenging a

candidate’s qualifications for the general election, this code section contains strict time limitations,

requiring the petition challenging the general election candidate’s qualifications to be filed not later

than 31 days after the date of the first primary election and that any subsequent petition for judicial

review be filed not later than 15 days after the date that the petition was filed with the “appropriate

election officials.” A petition for judicial review filed pursuant to Section 23-15-963 also requires the

posting of a $300.00 cost bond and the signature of two or more sufficient sureties conditioned to pay

all costs in the event the petition is dismissed.

8. There is no proof that Taitz, or any of the new Plaintiffs, filed any petition with the Democratic Party

Executive Committee or any other election body as a predicate to filing the first FAC. Rather, the

only conceivable “filing” with an election official was an email that Taitz sent to the undersigned

counsel for the MDEC, dated April 1, 2012, which the Secretary of State has attached to its Motion for

Judgment on the Pleadings and which is referenced by Plaintiffs in paragraph 14 of the FAC.

Notably, the undersigned counsel is not an officer of the Mississippi Democratic Party nor a member


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of the State Executive Committee, and is not the MDEC’s agent for service of process. Moreover,

Taitz’s email did not name the four additional Plaintiffs. Taitz’s email asks that her original petition

challenging President Obama’s candidacy in the primary election be converted to a general election

challenge, given that the primary election had already transpired. Assuming that Taitz’s email to the

undersigned counsel in some way constitutes a petition lodged with the Democratic Party, Taitz’s

subsequent petition for judicial review, contained in the FAC, is nonetheless untimely as Taitz would

have had to have filed this pleading in the Circuit Court of Hinds County and paid the cost bond within

15 days of the April 1 email “petition.” However, the FAC was not filed until April 19, 2012 and,

moreover, did not include the required bond and sureties. Because Taitz was required to file a Circuit

Court petition no later than April 15, 2012, and likewise to post a bond, her failure to do so in either

respect makes any general election challenge to President Obama’s qualifications time barred and

statutorily deficient under Section 23-15-963.

9. Alternatively, to the extent plaintiff Taitz and the four new Plaintiffs seek to challenge the

qualifications of President Obama as a candidate in the presidential preference primary,2 that claim is

likewise time-barred under Section 23-15-961. Miss. Code Ann. § 23-15-961 provides the exclusive

method by which the qualification of a candidate seeking public office as a party nominee may be

challenged.

10. The Plaintiffs are required to file in the Circuit Court a petition for judicial review challenging the

candidate’s qualifications no later than fifteen days after the date the contest petition was originally

filed with the appropriate party executive committee. According to her original state court petition,

Taitz filed her contest petition challenging Obama’s qualifications with the MDEC on January 8,

2012. Section 23-15-961 states that the challenge must be filed with the executive committee within

2 At page 43 of the FAC, the Plaintiffs seek to have the Secretary of State “decertify” or “annul” all votes for President Obama

in the presidential preference primary.


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ten days after the qualifying deadline. The qualifying deadline for the presidential preference

primaries provided in Miss. Code Ann. § 23-15-1093 was January 14, 2012. Under Section

23-15-961, the MDEC in turn must rule on the challenge petition within ten days of receiving it.

Assuming that Taitz filed her contest petition on January 8, 2012, the petition would have needed to be

ruled on by the MDEC by January 18, 2012. If it was not ruled on by the MDEC, which is the case

here, Taitz had fifteen days from the date the petition was filed with the MDEC to file a petition for

judicial review with the Circuit Court. However, Taitz did not file her Circuit Court petition until

February 14, 2012, far outside of the fifteen day window for doing so, thus making her original Circuit

Court petition time barred and requiring dismissal. Gourlay v. Williams, 874 So.2d 987, 988 (Miss.

2004).

PLAINTIFFS LACK STANDING

11. The claim attacking Obama’s qualifications to run in the Mississippi presidential preference primary

or appear on the general election ballot should be dismissed because, except for Fedorka, none of the

Plaintiffs are qualified electors of the State of Mississippi, and therefore lack standing to bring this

action in the Circuit Court of Hinds County or this Honorable Court. Section 23-15-961 provides that

“any party aggrieved by the action or inaction of the appropriate executive committee” may file a

petition for judicial review in the circuit court, as the exclusive procedure for challenging a candidate

running as a party candidate. Likewise, Section 23-15-963 affords “any party aggrieved” by the

inaction or action of the appropriate election officials the right to file a petition for judicial review in

the circuit court. There is simply no way any of the nonresident Plaintiffs can be an aggrieved party

or otherwise have standing. See Belhaven Improvement Ass’n, Inc. v. City of Jackson, 507 So.2d 41,

47 (Miss. 1987) (holding that “[for] standing, the person(s) aggrieved… whether one or more, should

allege an adverse effect different from that of the general public”); Roe v. Town of New Fairfield, 2012

WL 447561 (January 17, 2012) (Conn. Super.) (“To have standing as an elector, the plaintiff’s right to


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vote must be implicated.”); Alliance Marana v. Groseclose, 955 P.2d 43, 45 (Ariz. 1998)

(Non-resident lacks standing to file writ of mandamus regarding local referendum); United States v.

Hays, 515 U.S. 737, 745 (1995) (As a matter of standing, Plaintiffs stating race-based equal protection

challenges to redistricting must be voters who actually reside in the districts they are challenging).

12. Moreover, none of the Plaintiffs are different than any other citizen or voter of the United States and

thus have suffered no discrete injury required to satisfy standing. See Hollander v. McCain, 566 F.

Supp. 2d 63, 68 (D.N.H. 2008) (voter lacked standing to challenge constitutional qualifications of

presidential nominee in that he suffered no cognizable injury and was not prevented from voting for

someone else); Drake v. Obama, 664 F.3d 774, 780-781 (9th Cir. Dec. 22, 2011) (former and active

military personnel did not have standing to argue that President Obama is constitutionally ineligible to

be President of the United States as they did not show concrete injury); Berg v. Obama, 574 F. Supp.2d

509 (E.D. Penn. 2008), aff’d, 586 F.3d 234, 239 (voter’s stake no greater than any other voter and thus

suffered no injury in fact.)

PLAINTIFFS FEDORKA, ROTH, LAX AND MACLERAN’S FAILURE TO FILE ANY

PETITION WITH THE MDEC BARS THEIR ACTION

13. Only Plaintiff Taitz even attempted to adhere to the procedure for challenging a candidate seeking

public office by claiming to have filed a petition with the MDEC. The other Plaintiffs did not

“appear” until their names were included in the FAC. Section 23-15-961 requires an aggrieved party

to first file a contest petition with the party executive committee, and Section 23-15-963 similarly

requires first filing in “appropriate election officials. Failure to adhere to that requirement before

filing n Circuit Court is jurisdictionally deficient and requires dismissal of the claim. Gourlay v.

Williams, 874 So.2d 987, ¶10 (Miss. 2009). Alternatively, except for Taitz, no plaintiff filed petitions

with the MDEC challenging President Obama’s qualifications and thus cannot be parties to any action

filed pursuant to Sections 23-15-961 or 23-15-963. Id. at 988.


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THE MISSISSIPPI DEMOCRATIC PARTY HAS NO STATUTORY DUTY

TO DETERMINE PRESIDENTIAL CANDIDATE QUALIFICATIONS

14. Under Miss. Code Ann. §23-15-1089, responsibility for placing President Obama’s name on the

primary ballot is vested in the Mississippi Secretary of State, not the MDEC. In that regard, the

Secretary of State is required by law to place each “generally recognized” candidate on the presidential

primary ballot. Clearly, President Obama is a nationally recognized candidate. Section 23-15-1089

does not require either the Secretary of State or the MDEC to review whether a generally recognized

candidate meets the federal constitutional specifications to be president, such as whether a candidate is

a natural born citizen. Under Section 23-15-1089, the MDEC had absolutely no role in placing

President Obama on the March 2012 primary ballot.

15. In Keyes v. Bowen, 189 Cal. App. 4th 647, 117 Cal. Rptr. 3d 207 (Cal. App. 3 Dist. 2010) the

California Court of Appeals considered a statute nearly identical to Section 23-15-809 and affirmed

the dismissal of a mandamus action against the California Secretary of State regarding President

Obama’s candidacy. The California statute required a candidate’s name to be placed on the

presidential primary ballot if it was determined by the Secretary of State that the candidate is

“generally advocated for or recognized throughout the United States or California as actively seeking

the nomination of the Democratic Party for President of the United States…” Id. at 658. The Court

found that the California statute did not impose any duty on the Secretary of State to determine

whether a presidential candidate meets the eligibility criteria of a citizen under the United States

Constitution. Accordingly, using the reasoning in Keyes v. Bowen, the instant lawsuit brought by the

Plaintiffs against the Mississippi Secretary of State and the MDEC must be dismissed because the

Secretary of State had no duty to determine whether a candidate is qualified to be president before

placing him on the party primary ballot.


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MISSISSIPPI ELECTION OFFICIALS HAVE NO JURISDICTION OVER THE

QUALIFICATIONS OF CANDIDATES FOR PRESIDENT OF THE UNITED STATES

16. Mississippi election officials have no jurisdiction over the subject of a candidate’s eligibility under the

U.S. Constitution for the office of President of the United States. As the Keyes v. Bowen decision

noted, “the presidential nominating process is not subject to each of the fifty States’ election officials

independently deciding whether a presidential nominee is qualified, as this could lead to chaotic

results.” 189 Cal. App. 4th at 660. Rather, federal law sets forth the exclusive procedure by which

objections to the qualifications of a presidential candidate may be registered and resolved.

“Mechanisms exist under the Twelfth Amendment and 3 U.S.C. §15 for any challenge to any

candidate to be ventilated when electoral votes are counted, and the Twentieth Amendment provides

guidance regarding how to proceed if a president elect shall have failed to qualify. Issues regarding

qualifications for president are quintessentially suited to the foregoing process.” 189 Cal. App. 4th at

661. Therefore, any challenge to President Obama’s eligibility to run as a candidate, either in the

primary or the general election, is committed under the United States Constitution to the presidential

electors and the legislative branch, at least in the first instance—not to the Mississippi Secretary of

State, the Mississippi Democratic Party, or this Court. See Robinson v. Bowen, 567 F. Supp. 2d 1144,

1147 (N.D. Cal. 2008).

17. Because of the Electoral College system of presidential elections set forth in the United States

Constitution, Mississippi voters actually vote for the electors for a candidate for president, and not for

candidates themselves. At the Democratic State Convention, the Party designates a slate of electors

who “announce and clearly express design and purpose to support” the presidential candidate selected

at the Democratic National Convention. Miss. Code Ann. § 23-15-771. Electors are chosen by

voters the first Tuesday after the first Monday in November in presidential election years. Miss. Code

Ann. § 23-15-781. The Secretary of State certifies to the circuit clerks of all 82 counties in


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Mississippi the names of the presidential nominee and vice presidential nominee selected at the

Democratic National Convention. Miss. Code Ann. § 23-15-785(1). Beforehand, the National

Democratic Party provides the Secretary of State its nominee’s names by submitting a “certificate of

nomination” signed by the presiding officer and secretary of the Democratic National Convention and

by the MDEC Chairman at least 60 days prior to the November general election. Miss. Code Ann. §

23-15-785(2). The official sample ballot submitted to the counties must include the word

“presidential electors for” candidate for President and candidate for Vice President, in lieu of the

elector’s names on the ballot. However, votes cast for electors for the named candidates must be

counted as votes for the candidate’s electors. Nowhere in these statutory procedures do either the

MDEC or the Secretary of State provide a direct role in determining the qualifications of the

Democratic nominee for President selected at the national convention.

MOOTNESS/RIPENESS

18. To the extent Taitz or the other Plaintiffs continue to challenge President Obama’s placement as a

candidate on the March 13, 2012 presidential primary ballot, the action is moot because the election

has already taken place. Allred v. Webb, 641 So.2d 1218, 1220 (Miss. 1994). Likewise, because

President Obama has not been nominated by the Democratic National Convention as the Party’s

nominee for President, the matter is not justiciable under the doctrine of ripeness. State ex rel.

Holmes v. Griffin, 667 So.2d 1319, 1325 (Miss. 2005).

PLAINTIFFS ARE NOT ENTITLED TO DECLARATIONS OR INJUNCTIVE

RELIEF AS A MATTER OF LAW

19. Plaintiffs’ request for declaratory or injunctive relief preventing President Obama from placement on

the ballot fail as a matter of law. Plaintiffs seek (1) a declaratory judgment “deeming Barack Obama

not eligible to be on the ballot as a candidate for the U.S. Presidency due to fraud, lack of eligibility

and use of forged identification papers”; and (2) an injunction “preventing Secretary of State from


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placing Obama’s name on the ballot in the general election and de-certifying/annulling all votes for

Obama in the primary election.” See FAC (Docket No. 1-1) at 43. Both forms of requested relief

are unavailable to Plaintiffs as a matter of law, as previously articulated, and for the reasons set forth

below.3

A. Plaintiffs’ legal claims purporting to expand the Constitutional requirement that the

President be a “Natural Born Citizen” fail as a matter of law

20. While Plaintiffs’ FAC is in many respects incomprehensible, it appears that the legal basis for

Plaintiffs’ claim that Obama is not eligible for re-election is two-fold: First, Plaintiffs contend that

President Obama has failed to produce his “identification papers.” See FAC at page 16 ¶ 2 (“[t]he

most glaring evidence of Obama’s lack of natural born status and legitimacy for the US Presidency, is

Obama’s lack of most basic valid identification papers”). 4

Second, Plaintiffs contend that even if

President Obama did produce “his papers,” he would not qualify to serve as President because both of

his parents were not U.S. citizens at the time of his birth. See FAC at page 14 ¶ 5. Both arguments

are frivolous and wholly without merit.

The Constitution does not countenance Plaintiffs’ “papers please” demands

21. Plaintiffs have not – because they cannot – cited any authority whatsoever to justify their demand that

President Obama show them “identification papers” satisfactory to them. The Constitution, which

provides in relevant part that “[n]o person except a natural born citizen . . . shall be eligible to the

office of President,” does not support Plaintiffs’ demands. See U.S. CONST. art. II, § 1.5 Nor can

3 Plaintiffs are not alone. More than one hundred “birther” challenges have been filed – and rejected – since 2008 (including

more than twenty challenges filed by Taitz individually or on behalf of others). See Exhibit A.

4 See also id. at page 12 ¶ 1 (“Obama never presented to any court of law or any elections commission any valid original

identification papers or any valid certified copies, which can be used to verify the originals.”); id. at 23 [unnumbered paragraph

between ¶ 16 and ¶17] (“Based on all of the above, Obama does not have any valid identification papers . . . .”); id. at 25 [unnumbered second paragraph] (“Barack Hussein Obama does not have any valid U.S. identification papers and is

constitutionally not eligible.”); id. at 26 [unnumbered first paragraph] (“Obama never had any valid identification papers . . . .”).

5 Plaintiffs cannot credibly argue that the original intent of the provision was to require candidates to provide state-issued birth

certificates, social security cards, or secret service registration forms, given that no such papers even existed at the time the

Constitution was drafted. The Social Security Administration was created by the Social Security Act of 1935. See 42 U.S. §


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Plaintiffs rely on any state or federal statute to claim that a candidate for the Presidency must provide

“papers” to prove eligibility, because no such law exists. As such, the existence (or lack) of

“identification papers” such as a social security card, selective service registration, or particular type

of birth certificate is simply irrelevant to a candidate’s eligibility to serve as President pursuant to

Constitution Article II Section 1.

The Constitution does not countenance Plaintiffs’ heritage-based claims

22. Plaintiffs also contend that “since [President] Obama's father was a foreign national . . . he would have

been a foreign national from birth based on his father's citizenship,” he is not eligible for his office

because the “meaning of natural born citizen as intended in the US Constitution, is one born in the

country to two US citizen parents.” See FAC at page 14 ¶ 5.

23. The contention that Barack Obama is not a natural born citizen because his Father was not a citizen

when President Obama was born is “without merit,” as recently recognized by the District Court in

Tisdale v. Obama, where plaintiff Charles Tisdale raised the identical argument.6 In Tisdale, plaintiff

sought an injunction to prevent the Virginia State Board of Elections from certifying any candidate

who lacks standing as a "natural born citizen" from appearing on the 2012 election ballot. There, as

here, plaintiff argued that President Obama is “ineligible to appear on the ballot, on the grounds that

[he] had at least one parent who was not a citizen of the United States.” The District Court firmly

rejected this frivolous argument, stating the obvious:

“It is well settled that those born in the United States are considered natural born citizens.

See, e.g., United States v. [Wong Kim] Ark, 169 U.S. 649, 702 (1898) (“Every person born

in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the

401 et seq. The Selective Service Registration System was created by the Selective Service Act of 1917. See 40 Stat. 76.

Mandated registration of births with the various states was not implemented until, at the earliest, the mid-1800s. See AM

HETZEL, HISTORY AND ORGANIZATION OF THE VITAL STATISTICS SYSTEM, Appendix II at 58 (National Center for Health

Statistics 1997), available at http://www.cdc.gov/nchs/data/misc/usvss.pdf (last visited May 3, 2012) (Motion Exhibit 8).

6 Tisdale v. Obama, No. 3:12-cv-00036-JAG (E.D. Va. Jan. 23, 2012) (dismissing in forma pauperis complaint pursuant to 28

USC 1915(e)(2)(B)(ii), which requires the district court to assess the merits of the pauper’s tendered complaint), appeal

pending, No. 12-1124 (4th Cir. filed Jan. 30, 2012).


www.cdc.gov/nchs/data/misc/usvss.pdf

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United States.”); Perkis v. Elg, 99 F.2d 408, 409 (1938). Moreover, “those born ‘in the

United States, and subject to the jurisdiction thereof,’ . . . have been considered American

citizens under American law in effect since the time of the founding . . . and thus eligible

for the presidency.” Hollander v. McCain, 566 F. Supp. 2d 63, 66 (D.N.H 2008).”

Tisdale v. Obama, No. 3:12-cv-00036-JAG (E.D. Va. Jan. 23, 2012), Order at 2. Indeed, a New York

state court recently found the argument advanced by Plaintiffs to be frivolous:

“Despite plaintiff's assertions, Article II, Section 1, Clause 5 does not state this. No legal

authority has ever stated that the natural born citizen clause means what [plaintiff] claims it

states. "The phrase 'natural born Citizen' is not defined in the Constitution, see Minor v

Happersett, 88 US 162, 167 [1875]), nor does it appear anywhere else in the document . . .

[Plaintiff] cannot wish into existence an interpretation that he chooses for the natural born

citizen clause. There is no arguable legal basis for the proposition that both parents of the

President must have been born on U.S. soil. This assertion is [] frivolous.”

Strunk v. NY Bd. of Elections et al, No. 006500/2011 (N.Y. King County Supr. Ct. Apr. 12, 2012), Ord

(dismissing complaint challenging, among other things, President Obama’s eligibility to his office and

issuing a show cause order as to why sanctions should not be imposed upon plaintiff), Order at 37.

These cases are among several court and administrative hearing cases holding that Barack Obama is a

natural born citizen, eligible to serve as President. For example, in 2009 the Indiana Court of Appeals

affirmed a lower court’s dismissal of a complaint filed during the 2008 election based on the same

heritage-based argument advanced by Plaintiffs here for failure to state a claim upon which relief can

be granted. See Ankeny v. Daniels, 916 N.E.2d 678, 688 (Ind. Ct. App. 2009) transfer denied 929

N.E.2d 789 (Ind. 2010). The Ankeny plaintiffs – like Plaintiffs here – argued that “because his father

was a citizen of the United Kingdom, President Obama is constitutionally ineligible to assume the

Office of the President.” 916 N.E.2d at 685. The court firmly rejected this argument, recognizing

that

“based upon the language of Article II, Section 1, Clause 4 and the guidance provided by

Wong Kim Ark, we conclude that persons born within the borders of the United States are

‘natural born citizens’ for Article II, Section 1 purposes, regardless of the citizenship of

their parents. Just as a person born within the British dominions was a natural-born British

subject’ at the time of the framing of the U.S. Constitution, so too were those born in the

allegiance of the United States natural-born citizens.”


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Ankeny v. Daniels, 916 N.E.2d at 688. Similarly, a state court in Arizona earlier this year rejected the

identical argument advanced by Plaintiffs here and, like Ankeny and Tisdale, recognized that United

States Supreme Court precedent – i.e., Wong Kim Ark – “fully supports that President Obama is a

natural born citizen under the Constitution and thus qualified to hold the office of President.” Allen v.

Obama et al, No. C20121317 (Ariz. Pima County Super. Ct. Mar. 7, 2012), appeal filed (Mar. 8,

2012).

24. Notwithstanding this clearly-established precedent, Plaintiff Taitz and those who share her views have

parroted these arguments to various courts and regulatory agencies around the country. Not

surprisingly given the clearly-established precedent, in each and every instance where their

heritage-based argument has been considered, Plaintiffs’ argument has been soundly and firmly

rejected – including one instance involving a lengthy evidentiary hearing at which Taitz offered most

of the same exhibits attached to the FAC as “evidence,” put several of the same witnesses on the stand

whose affidavits are attached to the FAC, and even personally testified with no opposition present to

represent the President’s interests. See Farrar v. Obama, No. OSAH-SECSTATE-CE-1215136-60

-MALIHI (Ga. Office of St. Admin. Hrg. Feb. 3, 2012) (rejecting challenge to President Obama’s

eligibility to appear on 2012 ballot in Georgia after holding an evidentiary hearing; finding that

President Obama is a “natural born citizen”). In total, the MDEC has identified eight written

decisions issued in seven different states to date, in which Plaintiffs’ heritage-based argument has been

squarely considered – and flatly rejected.7

25. In their FAC, Plaintiffs simply ignore the controlling authority of Wong Kim Ark, and instead cite to

an earlier U.S. Supreme Court decision, Minor v. Happersett, 88 U.S. 162 (1874). See FAC at page

24 (incorrectly referring to Minor as an “1875” decision). However, as even a cursory reading of

7 See Exhibit B for copies of these decisions.


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Minor confirms – and as every court to consider the argument advanced by Plaintiffs has held – Minor

does not come close to supporting Plaintiffs’ argument. See, e.g., Allen v. Obama et al, Order at 2

(“[c]ontrary to Plaintiffs’ assertion, Minor v. Happersett, 88 U.S. 162 (1874), does not hold

otherwise”); Ankeny v. Daniels, 916 N.E.2d at 686 (“the [Minor] Court left open the issue of whether a

person who is born within the United States of alien parents is considered a natural born citizen”);

Farrar v. Obama, Decision at 8 (same); Purpura v Obama, No. STE 04588-12 (N.J. Office of Admin

Law Apr. 10, 2012), Decision at 6 n.2 (recognizing that Minor Court discussion of term was dicta).

26. In short, Plaintiffs’ argument – which is at the core of Taitz’s “Sisyphean quest”8 to unseat President

Obama – is founded upon their inability to accept the obvious:

“The constitutional history, the nearly unanimous consensus of legal and constitutional

scholars, and the consistent, relevant case law thus indicate that every child born in and

subject to the jurisdiction of the United States (that is, not children of diplomatic personnel

representing a foreign nation or military troops in hostile occupation), is a native born U.S.

citizen and thus a "natural born Citizen" eligible to be President under the qualifications

clause of the Constitution, regardless of the nationality or citizenship of one’s parents. The

legal issues regarding "natural born" citizenship and birth within the United States, without

regard to lineage or ancestral bloodline, have been well settled in this country for more than

a century, and such concepts date back to, and even pre-date, the founding of the nation.”

Jack Maskell, Cong. Research Srv., No. R42097, Qualifications for President and the "Natural Born"

Citizenship Eligibility Requirement (2011) (Exhibit C) at 50.

27. As another U.S. District Court judge observed in passing on Taitz’s frivolous eligibility claims,

“[u]nlike in Alice in Wonderland, simply saying something is so does not make it so.”9 Plaintiffs’

heritage-based citizenship theory has no support in the U.S. Constitution or the holdings of the U.S.

Supreme Court, and it has been rejected by each and every court to consider it. As a matter of law,

8 See Taitz v. Ruemmler, No. 1:11-CV-01421, 2011 WL 4916936, *1 (D.D.C. Oct. 17, 2011) (characterizing the twelfth case

filed and/or participated in by Taitz as “part of her Sisyphean quest to prove that President Barack Obama is using a fake Social Security number and a forged birth certificate”).

9 Rhodes v. MacDonald, No. 409-CV-106CDL, 2009 WL 2997605, *4 (M.D. Ga. Sept. 16, 2009) (rejecting claim brought by

Taitz on behalf of military servicewoman as frivolous), subsequent order, 670 F. Supp.2d 1363 (M.D. Ga. 2009) (imposing

$20,000 sanction for violating Rule 11 by filing frivolous motions), aff’d, 368 Fed. App’x 949, (11th Cir. 2010), reh’g denied,

No. 09-15418-BB (11th Cir. May 14, 2010), app. for stay denied, 131 S. Ct. 44 (2010), cert. denied, 131 S. Ct. 918 (2011).


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Plaintiffs’ claims that President Obama has to provide them with satisfactory papers of his status and,

alternatively, that he cannot do so because his Father was not a U.S. citizen when President Obama

was born, fail to state claims for declaratory relief or injunction, and invalidate any other claim

premised on their desired interpretation of the presidential qualifications clause.

B. Plaintiffs’ claim that President Obama is ineligible because of purportedly “invalid”

“identification papers” is frivolous.

28. Plaintiffs expressly reference the “short form” Certificate of Live Birth issued by the Obama For

America campaign in 2008 (hereafter “COLB”) as well as the “long form” Certificate of Live Birth

published by the White House in 2011 (hereafter “LFBC”),10

and spend the bulk of their FAC (and

more than one hundred pages of often unintelligible and illegible exhibits) alleging that “experts” have

determined that these documents and other “identification papers” are invalid.11

However, even if

Plaintiffs were able to prove such spuriously baseless claims, their requested relief would still be

unavailable as a matter of law for the reasons set forth below.

29. First, as noted above, Plaintiffs’ demand for President Obama’s papers is wholly without merit

because “identification papers” are not a requirement for eligibility in the Constitution and Plaintiffs’

heritage-based argument is equally frivolous because, under clearly established precedent, a person

born in the United States is a “natural born citizen” without regard to his heritage. Here, Plaintiffs

have failed to even claim – much less provide any factual allegations to support such a claim – that

President Obama was born anywhere other than the United States. As such, Plaintiffs have not

10 See FAC at page 12 ¶ 1 and page 36 ¶ b. Although Plaintiffs do attach a couple copies of the LFBC to their FAC, it – like

many of Plaintiffs exhibits – is barely legible. While Plaintiffs reference the COLB in their Complaint (at page 36 ¶ b), the

MDEC was unable to find a copy of that document contained in Plaintiffs voluminous and disorganized exhibits. Therefore,

the MDEC has attached to its Motion a legible a copy of the LFBC (Motion Exhibit 1) and COLB (Motion Exhibit 2).

11 It is worth noting that in a substantively identical case adjudicated by Plaintiff Taitz in Georgia, the same “evidence” upon which she relies in this case by attaching it as exhibits to her FAC was deemed “to be of little, if any, probative value,” and the

same witnesses whose affidavits she attaches to the FAC were deemed not qualified to testify as “experts.” See Farrar v.

Obama, No. OSAH-SECSTATE-CE-1215136-60-MALlHI (Ga. Office of St. Admin. Hrg. Feb. 3, 2012), Decision at page 4.

Inexplicably, Plaintiffs have attached as an exhibit to their complaint, a copy of the hearing transcript upon which the order

rejecting all of Taitz’s so-called “evidence” was based. See Doc. #1-1 at 112-157.


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adequately alleged – nor could they within the constraints of Rule 11 – that President Obama is not a

natural born citizen as required by the Constitution.

30. Second, irrespective of the contents of President Obama’s birth records, the Hawaiì Department of

Health has independently verified that President Obama was born in Hawaiì. In reviewing a motion

for judgment on the pleadings, the Court may consider (1) the complaint, (2) documents attached to

the complaint, (3) documents incorporated into the complaint by reference, and (4) matters of which a

court may take judicial notice. See Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011) (internal

quotation marks omitted) (finding that district court appropriately took judicial notice of

publicly-available documents and transcripts produced by the FDA, “which were matters of public

record directly relevant to the issue at hand” in ruling on a 12(b)(6) motion).12

Great Plains Trust Co.

v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 n. 8 (5th Cir. 2002) (same standard for Rule

12(c) motions as is used for Rule 12(b)(6) motions.) As such, the Court may take judicial notice of

the fact that the State of Hawaiì has independently verified that President Obama was born in Hawaii:

“I, Dr. Chiyome Fukino, Director of the Hawai‛i State Department of Health, have seen

the original vital records maintained on file by the Hawaiì State Department of Health

verifying Barack Hussein Obama was born in Hawaiì and is a natural-born American

citizen.”

See State of Hawai’i Department of Health News Release, Statement By Health Director Chiyome

Fukino, M.D. (July 27, 2009) (Motion Exhibit 7).13

12 See also Maloney Gaming Management, L.L.C. v. St. Tammany Parish, 456 Fed. App’x 336, 340-41 (5th Cir. 2011) (district

court properly considered items attached to motion to dismiss § 1983 complaint, including “prohibiting ordinance, documents

indicating that parish's department of planning had no objection to property owner receiving occupational licenses with

handwritten notation “assembly hall,” and occupational business licenses issued to property owner, and all those documents

were referenced in property owner's complaint and were thus central to the claims”) citing In re Katrina Canal Breaches Litig.,

495 F.3d 191, 205 (5th Cir. 2007) (consideration of insurance contracts referred to, but not attached to, complaint was

permissible where they were attached to motions to dismiss and were central to plaintiffs' claims); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2008) (directing courts to “consider the complaint in its entirety, as well as other sources

courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the

complaint by reference, and matters of which a court may take judicial notice”).

13 This document is available on the official Hawaiì state government website at

http://hawaii.gov/health/about/pr/2009/09-063.pdf (last visited May 2, 2012);see also Hawaiì State Department of Health


hawaii.gov/health/about/pr/2009/09-063.pdf

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31. Third, the Court may take judicial notice of the fact that Hawaiì Department of Health has verified the

authenticity of the LFBC published by the White House in 2011 (hereafter “LFBC”). In 2011,

Loretta Fuddy, Director of the Hawaiì State Department of Health stated in publicly released

documents as follows:

“We hope that issuing certified copies of the original Certificate of Live Birth to President

Obama will end the numerous inquiries related to his birth in Hawaiì,” . . . I have seen the

original records filed at the Department of Health and attest to the authenticity of the

certified copies the department provided to the President that further prove the fact that he

was born in Hawaiì.”

See State of Hawai’i Governor Neil Abercrombie, Hawai‘i Health Department Grants President

Obama’s Request For Certified Copies Of ‘Long Form’ Birth Certificate (April 27, 2011) (Motion

Exhibit 4) (emphasis supplied).14

Additionally, the Hawaiì Department of Health has verified that the

LFBC posted online by the White House is a copy of the certified LFBC that was provided by the

Hawaiì Department of Health:

“On April 27, 2011 President Barack Obama posted a certified copy of his original

Certificate of Live Birth. For information go to

[]www.whitehouse.gov/blog/2011/04/27/president-obamas-long-form-birth-certificate.”

See Motion Exhibit 3.15

32. Fourth, the United States Supreme Court has held that a candidate who meets the qualifications set

forth in the text of the Constitution for a federal office and is elected to that office, may not be denied

Press Release No. 08-93 (October 31, 2008) (Motion Exhibit 6), available at http://hawaii.gov/health/about/pr/2008/08-93.pdf

(last visited May 2, 2012) (“I have personally seen and verified that the Hawaiì State Department of Health has Sen. Obama’s

original birth certificate on record in accordance with state policies and procedures.”). In January 2011, Dr. Fuddy was

appointed as Director of the Hawaiì Department of Health, replacing former Director Fukino. See

http://hawaii.gov/gov/newsroom/in-the-news/loretta-fuddy-appointed-health-director-5 (last visited May 3, 2012).

14 This document is available on the official Hawaiì state government website at

http://hawaii.gov/health/vital-records/News_Release_Birth_Certificate_042711.pdf (last visited May 2, 2012). See also April

25, 2011 Letter from Director Loretta Fuddy to President Obama (Motion Exhibit 5), available at http://hawaii.gov/health/vital-records/obama.html (last visited May 2, 2012) (“Enclosed please find two certified copies of your

original Certificate of Live Birth. I have witnessed the copying of the certificate and attest to the authenticity of these copies.”)

(emphasis added).

15 This information is available on the official on the official Hawaiì state government website at

http://Hawai’i.gov/health/vital-records/obama.html.


hawaii.gov/health/about/pr/2008/08-93.pdf

http://hawaii.gov/gov/newsroom/in-the-news/loretta-fuddy-appointed-health-director-5

hawaii.gov/health/vital-records/News_Release_Birth_Certificate_042711.pdf

http://hawaii.gov/health/vital-records/obama.html

http://hawai'i.gov/health/vital-records/obama.html

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the office on the basis of alleged wrongdoing. Powell v. McCormack, 395 U.S. 486 (1969). Indeed,

such an extra-Constitutional restriction is contrary to the “fundamental principle of our representative

democracy,” embodied in the Constitution, that “the people should choose whom they please to

govern them.” 395 U.S. at 547; see also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 827 (1995)

(“the available historical and textual evidence, read in light of the basic principles of democracy

underlying the Constitution and recognized by this Court in Powell, reveal the Framers' intent that

neither Congress nor the States should possess the power to supplement the exclusive qualifications

set forth in the text of the Constitution”). As such, even if Plaintiffs’ spurious and baseless

allegations of wrongdoing were true (which they are not), the Constitution would still preclude

Plaintiffs from obtaining the relief they seek. (Under Powell, Plaintiffs’ RICO claim, addressed in

more detail below, similarly does not provide a basis for holding that President Obama is disqualified

from the 2012 ballot).

33. In short, President Obama was born in the United States of America. Plaintiffs have neither claimed

he was born anywhere else nor provided any factual allegations to support such a claim. With respect

to Plaintiffs claims of forged documents, the Court need not accept such allegations as true where, as

here, documents referenced in the complaint of which the Court may take judicial notice prove the

falsity of such claims and, the United States Supreme Court has clearly held that such allegations may

not form the basis of a candidate’s disqualification under the Constitution. Therefore, Plaintiffs’

claim that Obama is ineligible to be placed on the 2012 election ballot based on their various and

sundry (and baseless) allegations of wrongdoing fail as a matter of law.

PLAINTIFFS’ RICO CLAIM FAILS AS A MATTER OF LAW

34. Plaintiffs base their purported RICO claim on the supposed “fraud” being perpetrated on the American

people by an allegedly ineligible candidate serving in or running for the office of President of the

United States. While the RICO claim is infirm precisely because Plaintiffs have not and cannot plead


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“fraud” based on ineligibility – because President Obama is eligible – the RICO claim is also frivolous

since it does not allege an economic injury, any “enterprise” comprised of the Defendants (who now

include not only the Mississippi Democratic Party but also Hawaii health officials, the former Speaker

of the House, the President and the Commissioner of Social Security), or any of the other requirements

of the RICO statute.

35. This is not the first time RICO pleadings from Taitz relating to the eligibility of President Obama have

been found deficient. In Taitz v. Obama, 707 F.Supp.2d. 1 (D.D.C. 2010), a purported "quo

warranto" case that Taitz attempted to amend in order to plead a RICO claim, the court explained what

Taitz needed to allege, and how she fell woefully short, not merely for pleading a RICO claim but for

pleading a fraud claim:

Ms. Taitz's claims under the Racketeer Influenced and Corrupt Organization Act (RICO)

are also defective. In order to bring a claim under 18 U.S.C. § 1962 a civil plaintiff must

allege:

(1) That the defendant (2) through the commission of two or more acts (3)

constituting a “pattern” (4) of “racketeering activity” (5) directly or

indirectly invests in, or maintains an interest in, or participates in (6) an

“enterprise” (7) the activities of which affect interstate or foreign

commerce.... [P]laintiff must [also] allege that he was “injured in his

business or property by reason of [the] violation of § 1962.” Moss v.

Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir.1983).

The Court first addresses the predicate acts Ms. Taitz has alleged. First of all, neither

violations of 42 U.S.C. § 1983 nor 42 U.S.C. § 1985 are “racketeering activities” which

could be the basis for Ms. Taitz's RICO claim. See 18 U.S.C. § 1961(a) (defining which

offenses are racketeering activities). They thus are not actionable as violations of section

1962. With respect to the various allegations of fraud-and fraud indeed is a predicate act for

purposes of RICO liability- Ms. Taitz has failed to sufficiently plead her claims. To the

degree a RICO complaint sounds in fraud, the plaintiff must meet Rule 9(b)'s particularity

requirements. See Farlow v. Peat, Marwick, Mitchell & Co., 956 F.2d 982, 989 (10th

Cir.1992). As the Court observed earlier, Ms. Taitz's fraud claims fail to even meet the

standards of Rule 8, much less the heightened requirements of Rule 9(b). Iqbal, 129 S.Ct. at

1954. As such, she has failed to state a claim upon which relief may be granted and her

RICO claims will be dismissed. FED.R.CIV.P. 12(b)(6).


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Taitz v. Obama, supra, 707 F. Supp.2d. at 5. What Taitz has done here is to add more defendants

(none of whom had been served as of the date of removal) to Taitz’s expanded election challenge, add

a number of additional Plaintiffs, and aver the alleged conduct discussed above which is, nevertheless,

not actionable under the RICO statute.

36. Plaintiffs allege a conspiracy among a disparate group of defendants, including Hawaii Health

Department officials, the Commissioner of Social Security, the President of the United States and the

former Speaker of the House of Representatives for alleged acts that occurred over a five-year period,

from 2007 to the present, purportedly as a massive cover up of President Obama’s supposed

ineligibility. As to MDEC, Plaintiffs only plead that Taitz – who is neither a registered Mississippi

voter nor even a resident of our state and who did not purport to represent any citizen of Mississippi –

“advised” MDEC of President Obama’s alleged ineligibility and MDEC did nothing about it. See

FAC page 14-15, ¶¶ 5-6 and pages 29-30 (unnumbered paragraph) (referring to MDEC as an “aider

and abetter”). There are no allegations that MDEC acted in concert with anyone, conspired with

anyone, or did anything. The sole factual allegation upon which Plaintiffs base their RICO claim

against MDEC is that it ignored Taitz’s preposterous claims.

37. Setting aside the fact that Plaintiffs have not alleged any actionable predicate acts (ignoring Orly Taitz

is not among the crimes listed in 18 U.S.C. § 1962), two additional and fatal infirmities in the RICO

pleading are these:

38. First, in order to have RICO standing, a plaintiff must have been “injured in his business or property.”

18 U.S.C. § 1964(c). Non-economic harms, such as defamation, personal injury and similar

non-monetary injuries, do not constitute sufficient injury to “business or property.” See, e.g., Price v.

Pinnacle Brands, Inc., 138 F.3d 602, 606-607 (5th Cir. 1998 ) (no tangible loss alleged); Gaines v.

Texas Tech Univ., 965 F. Supp. 886, 890-891 (N.D. Tex. 1997) (personal injury and loss of


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educational opportunities insufficient). By parity of reasoning, injury to one’s political rights is also

not sufficient. Nor may the Plaintiffs base their standing on injury to others. See Crawford Arms, Inc.

v. Waste Management, 23 F. Supp. 2d 676, 678-79 (S.D. Miss. 1998). Thus, Plaintiffs do not have

RICO standing.

39. Second, Plaintiffs have failed to plead an “enterprise,” and have failed to plead that the Defendants

conducted the “enterprise” as is required for a RICO claim. See Parker & Parsley Petroleum Co. v.

Dresser Indus., 972 F.2d 580, 584 (5th Cir. 1992); Terrell v. Hancock Bank, 7 F. Supp. 2d 812,

818-819 (S.D. Miss. 1998). Instead, Plaintiffs allege only that there were a number of disparate acts

conducted by a number of people over a period of time relating to maintaining President Obama’s

birth records, social security records and support for campaigns for President. This is insufficient.

A RICO “enterprise” requires “an ongoing organization with some sort of framework, formal or

informal, for carrying out its objectives” and that “the various members and associates of the

association function[ed] as a continuing unit to achieve a common purpose.” See Boyle v. United

States, 556 U.S. 939, 951 (2009). No such allegations appear here. Nor does the complaint allege that

any of the defendants “conducted the affairs” of the enterprise. See Reves v. Ernst & Young, 507 U.S.

170, 183-185 (1993). Needless to say, the complaint falls woefully short of the allegations required

to show that Defendants operated an enterprise that caused economic injury to Plaintiffs.

40. Simply put, Plaintiffs cannot plead a viable RICO claim. What they have pleaded is frivolous.

Defendants are entitled to a judgment on the pleadings with respect to the RICO claim.

WHEREFORE, PREMISES CONSIDERED, the Mississippi Democratic Party Executive Committee

hereby moves the Court to grant its Motion for Judgment on the Pleadings and assess all costs of this

action to the Plaintiffs.


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THIS the 4th day of May, 2012.

Respectfully submitted,

THE MISSISSIPPI DEMOCRATIC PARTY

EXECUTIVE COMMITTEE

By: /s/ Samuel L. Begley

Samuel L. Begley (MSB No. 2315)

By: /s/ Scott J. Tepper

Scott J. Tepper (Admitted pro hac vice)

OF COUNSEL:

BEGLEY LAW FIRM, PLLC

P. O. Box 287

Jackson, MS 39205

(601)969-5545 (Telephone)

(601)969-5547 (Facsimile)

Email: [email protected]

SCOTT J. TEPPER

GARFIELD & TEPPER

1801 Century Park East, Suite 2400

Los Angeles, CA 90067-2326

(310) 277-1981

(310) 277-1980

[email protected]


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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the date set forth hereinafter, a true and correct copy of

the above and foregoing document was electronically filed with the Clerk of the Court using the ECF

system which sent notification of such filing to the following:

Harold E. Pizzetta, Esq.

Justin L. Matheny, Esq.

Office of the Attorney General

550 High Street, Suite 1200

P.O. Box 220

Jackson, MS 39205

Scott J. Tepper

Garfield & Tepper

1801 Century Park East, Suite 2400

Los Angeles, CA 90067-2326

[email protected]

Orly Taitz, Esq.

29839 Santa Margarita Parkway, Suite 100

Rancho Santa Margarita, CA 92688

And to the following persons by email:

Brian Fedorka

[email protected]

Laurie Roth

[email protected]

Leah Lax

[email protected]

Tom MacLeran

[email protected]

THIS the 4th day of May, 2012.

/s/ Samuel L. Begley_________

SAMUEL L. BEGLEY


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Exhibit A

Case 3:12-cv-00280-HTW-LRA Document 16-1 Filed 05/04/12 Page 1 of 9

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m “BIRTHER” CASES

Last Updated: May 3, 2012

I. Birther Cases with Decisions Recognizing that Obama is a ”Natural Born Citizen”............................. 1

II. Birther Cases Rejected by Federal Courts .............................................................................................. 2

III. Birther Cases Rejected by State Courts & Administrative Agencies ..................................................... 4

I. Birther Cases with Decisions Recognizing that Obama is a ”Natural Born Citizen”

Every court and administrative body to consider the issue has held that Obama is a Natural Born Citizen

who is eligible to serve as President. See, e.g., Allen v. Obama et al, No. C20121317 (Ariz. Pima County

Super. Ct. Mar. 7, 2012) (dismissing case challenging Obama’s eligibility to be on the 2012 ballot;

finding that Obama is a ”natural born citizen” under Wong Kim Ark; and expressly rejecting argument that

Minor v. Happersett holds otherwise), appeal filed (Ariz. App. Ct. 2d Div. Mar. 8, 2012); Ankeny v.

Daniels, 916 N.E.2d 678 (Ind. Ct. App. 2009) (“based upon the language of Article II, Section 1, Clause

4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the

United States are “natural born citizens” for Article II, Section 1 purposes, regardless of the citizenship of

their parents”) transfer denied 929 N.E.2d 789 (Ind. 2010); Farrar v. Obama, No. OSAH-SECSTATE-

CE-1215136-60-MALlHI (Ga. Office of St. Admin. Hrg. Feb. 3, 2012) (rejecting challenge to Obama’s

eligibility to appear on 2012 ballot; finding that Obama was born in U.S. and is a “natural born citizen”),

decision adopted by Ga. Sec’y of State (Feb. 7, 2012), appeal dismissed, No. 2012CV211398 (Ga. Fulton

County Super. Ct. Mar. 2, 2012), recons. denied (Mar. 14, 2012), appeal denied, No. S12D1180 (Ga.

Apr. 11, 2012); Freeman v. Obama, 12 SOEB GP 103 (Ill. Bd. of Elections Hearing Officer

Recommendation Jan. 27, 2012) (Obama’s birth certificate “clearly establishes” his eligibility for office

as a “Natural Born Citizen”), objection overruled (Ill. Bd. of Elections, Feb. 3, 2012); Galasso v Obama,

No. STE 04588-12 (N.J. Office of Admin Law Apr. 10, 2012) (initial decision rejecting challenge to

Obama's 2012 nominating position and finding that, assuming Obama was born in Hawaii, he is a "natural

born citizen" eligible for the presidency per Ankeny and Wong Kim Ark), decision adopted as final (N.J.

Sec’y of State Apr. 12, 2012); Jackson v. Obama, 12 SOEB GP 104 (Ill. Bd. of Elections Hearing Officer

Recommendation Jan. 27, 2012) (Obama’s birth certificate “clearly establishes” his eligibility for office

as a “Natural Born Citizen”), objection overruled (Ill. Bd. of Elections, Feb. 3, 2012); Kesler v. Obama,

No. 2012-162 (Ind. Election Comm’n Feb. 24, 2012) (denying objection seeking to keep Obama off 2012

ballot on grounds that he is not a “natural born citizen”); Powell v. Obama, No. OSAH-SECSTATE-CE-

1216823-60-MALIHI (Ga. Office of St. Admin. Hrg. Feb. 3, 2012) (rejecting challenge to Obama’s

eligibility to appear on 2012 ballot; finding that Obama was born in U.S. and is a “natural born citizen),

decision adopted by Ga. Sec’y of State (Feb. 7, 2012), appeal dismissed, No. 2012CV211528 (Ga. Fulton

County Super. Ct. Mar. 2, 2012), motion for injunction denied, No. S12D1077 (Ga. Mar. 13, 2012),

appeal denied (Ga. Apr. 4, 2012); Purpura et al v. Obama, No. STE 04534-12 (N.J. Office of Admin

Law Apr. 10, 2012) (initial decision rejecting challenge to Obama's 2012 nominating position and finding

that, assuming Obama was born in Hawaii, he is a "natural born citizen" eligible for the presidency per

Ankeny and Wong Kim Ark), decision adopted as final (N.J. Sec’y of State Apr. 12, 2012); Strunk v. N.Y.

Bd. of Elections et al, No. 006500/2011 (N.Y. King County Supr. Ct. Apr. 12, 2012) (dismissing

complaint challenging, among other things, President Obama’s eligibility to his office; expressly rejecting

the birther claim that Obama is ineligible on the basis of his father’s citizenship as frivolous, and issuing a

show cause order as to why sanctions should not be imposed upon plaintiff); Swensson v. Obama, No.

OSAH-SECSTATE-CE-1216218-60-MALIHI (Ga. Office of St. Admin. Hrg. Feb. 3, 2012) (rejecting

challenge to Obama’s eligibility to appear on 2012 ballot; finding that Obama was born in U.S. and is a

“natural born citizen”), decision adopted by Ga. Sec’y of State (Feb. 7, 2012), appeal dismissed, No.

2012CV211527 (Ga. Fulton County Super. Ct. Mar. 2, 2012), motion for injunction denied, No.

S12D1076 (Ga. Mar. 13, 2012), appeal denied (Ga. Apr. 4, 2012); Tisdale v. Obama, No. 3: 12-cv-


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00036-JAG (E.D. Va. Jan. 23, 2012) (order dismissing complaint) (dismissing in forma pauperis

complaint pursuant to 28 USC 1915(e)(2)(B)(ii) and holding that “[i]t is well settled that those born in the

United States are considered natural born citizens” and that plaintiff’s contentions otherwise are “without

merit”), appeal pending, No. 12-1124 (4th Cir. filed Jan. 30, 2012); Welden v. Obama, No. OSAH-

SECSTATE-CE-1215137-60-MALIHI (Ga. Office of St. Admin. Hrg. Feb. 3, 2012) (rejecting challenge

to Obama’s eligibility to appear on 2012 ballot; finding that Obama was born in U.S. and is a “natural

born citizen), decision adopted by Ga. Sec’y of State (Feb. 7, 2012), appeal dismissed, No.


S12D1059 (Ga. Mar. 13, 2012), appeal denied (Ga. Apr. 4, 2012).

II. Birther Cases Rejected by Federal Courts

Every federal court to rule on a birther case has rejected it. See, e.g., Allen v. Soetoro, 4:09-cv-00373 (D.

Ariz. Jan. 29, 2010) (dismissing FOIA action seeking documents related to Obama’s eligibility); Am.

Grand Jury, No Number Assigned (W.D.N.Y. Sept. 29, 2009) (letter from court staff attorney explaining

that court could not accept “presentment” prepared by public, seeking to indict Obama for ineligibility to

hold office and related matters); In re Am. Grand Jury, No. 3:09-mc-00215 (M.D. Tenn. Nov. 6, 2009)

(summarily rejecting grand jury “presentment” challenging President Obama’s eligibility to serve as

President as having no force under U.S. Constitution or law); Barnett v. Obama, 8:09-cv-00082-DOC-

AN, 2009 WL 3861788 (C.D. Cal. Oct. 29, 2009) (dismissing case challenging Obama’s eligibility;

criticizing conduct of plaintiff’s counsel in case filed on behalf of active and former military personnel,

state representatives, taxpayers, relatives, and political candidates), order clarified, 2009 WL 8557250

(C.D. Cal. Dec. 16, 2009), aff’d sub nom. Drake v. Obama, 664 F.3d 774 (9th Cir. 2011), reh’g and reh’g

en banc denied, Nos. 09-56827, 10-55084 (Feb. 2, 2012); Berg v. Obama, 574 F. Supp. 2d 509 (E.D. Pa.

2008) (dismissing case challenging Obama’s eligibility; characterizing various plaintiff’s claims as

frivolous), aff’d, 586 F.3d 234 (3d Cir. 2009), cert. denied, 555 U.S. 1126 (2009); Berg v. Obama, No.

1:08-cv-01933 (D.D.C. June 9, 2009) (dismissing qui tam case claiming Obama is not a U.S. citizen),

recons. denied, 656 F. Supp. 2d 107 (D.D.C. 2009), aff’d, 383 F. App’x 7 (D.C. Cir. 2010); Beverly v.

Fed. Election Comm’n, 1:08-cv-01538-AWI-GSA, 2009 WL 196361 (E.D. Cal. Jan. 28, 2009)

(dismissing case that included claims regarding Obama’s eligibility), aff’d, No. 09-15562 (9th Cir. July 1,

2009), cert. denied, 130 S. Ct. 1732 (2010); Bowhall v. Obama, No. 2:10-cv-0609, 2010 WL 4932747,

(M.D. Ala. Nov. 30, 2010) (dismissing complaint alleging, among other things, that Obama is not a

“natural born citizen,” as frivolous), aff’d, No. 10-15938-C (11th Cir. Apr. 4, 2011) (affirming order that

complaint was frivolous); Church of Jesus Christ Christian/Aryan Nations of Missouri et al v. Obama,

No. 6:08cv03405, 2011 WL 4916569 (W.D. Mo. Oct. 17, 2011) (dismissing case brought on, among

other bases, that, as non-white, Obama is not eligible to hold office), aff’d, No. 09-5012 (8th Cir. Jan. 31,

2012); Cohen v. Obama, No. 1:08-cv-02150, 2008 WL 5191864 (D.D.C. Dec. 11, 2008) (dismissing case

challenging Obama’s eligibility), aff’d, 332 F. App’x 640 (D.C. Cir. 2009) (per curiam), reh’g and reh’g

en banc denied, No. 09-5012 (D.C. Cir. Nov. 25, 2009); Connerat v. Obama, No. 8:11-cv-01359-SDM-

TGW (M.D. Fla. Dec. 21, 2011) (dismissing case challenging Obama’s eligibility); Cook v. Good, No.

4:09-cv-00082, 2009 WL 2163535 (M.D. Ga. July 16, 2009) (denying TRO seeking stay of military

orders pending confirmation of Obama’s eligibility; dismissing case), appeal dismissed, No. 09-14698-

CC (11th Cir. Nov. 24, 2009); Cook v. Simtech, No. 8:2009cv01382 (M.D. Fla. July 27, 2009), recons.

denied, (Aug. 6, 2009) (finding motion to reconsider “frivolous and wholly without merit); Craig v.

United States, No. 5:09-cv-00343-F (W.D. Okla. Apr. 3, 2009) (dismissing case seeking declaration

regarding definition of natural born citizen as “incomprehensible and frivolous”), aff’d, No. 09-6082, 340

F. App’x 471 (10th Cir. 2009), cert. denied, 130 S. Ct. 141 (2009); Craig v. U.S. Dept. of Homeland Sec.

et al, No. 5:10-cv-00659-C (W.D. Okla. July 3, 2010) (dismissing case challenging various government

publications defining term ”natural born citizen” as unconstitutional); Craig v. Holder, No. 11-9501 (10th

Cir. Mar. 17, 2011) (affirming Board of Immigration denial of request to certify that Craig is “natural

born citizen” eligible for presidency), reh’g denied (Apr. 29, 2011); Craig v. United States, No. 5:10-cv-


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01345-C (W.D. Okla. Jan. 4, 2011) (Dismissing VOIA action brought to obtain documents related to

federal definition of “natural born citizen”), appeal voluntarily dismissed, No. 11-6017 (10th Cir. Feb. 10,

2011); Dawson v. Obama, No. 2:08cv02754, 2009 WL 532617 (E.D. Cal. Mar. 2, 2009) (dismissing case

challenging Obama’s eligibility); Essek v. Obama, 08-379-GFVT (E.D. Ky. Jan. 15, 2009) (dismissing

case challenging Obama’s eligibility); Florida et al. v. U.S. Dep. of Health & Human Svs. No. 3:10-cv-

91-RV/EMT (N.D. Fla. Apr. 8, 2010) (denying motion to intervene based on interest in pressing charge

that President Obama is not a natural born citizen in lawsuit challenging the Patient Protection and

Affordable Care Act), recons. denied (Apr. 23, 2010); Hamblin v. Obama, 2:09cv00410, 2009 WL

2513986 (D. Ariz. Aug. 14, 2009) (dismissing case challenging Obama’s and McCain’s eligibility),

appeal dismissed, 09-17014 (9th Cir. Nov. 6, 2009); Hamrick v. Fukino, No. 1:08-cv-00544 ACK-KSC,

2009 WL 1404535 (D. Haw. May 20, 2009) (dismissing case seeking copy of Obama’s certified birth

certificate to determine whether he is natural born citizen); Herbert v. US, No. 3:08-cv-00634-TJC-MCR

(M.D. Fla. July 1, 2008) (dismissing case alleging, among other things, that U.S. Supreme Court Chief

Justice John Roberts violated the Constitution in refusing to accept plaintiff’s case); Herbert v. Obama, et

al, No. 3:08-cv-01164 (M.D. Fla. Dec. 30, 2008) (dismissing complaint alleging, among other things, that

Obama is not natural born citizen); Herbert v. United States, et al, No. 3:08cv01201 (M.D. Fla. Jan. 20,

2009) (dismissing complaint alleging, among other things, that Obama is not natural born citizen), appeal

dismissed, No. 09-10661 (11th Cir. Aug. 3, 2009) (dismissing appeal as frivolous and wholly without

merit), cert. denied, 130 S. Ct. 562 (2009), reh’g denied, 130 S.Ct. 1169 (2010); Hollander v. McCain,

566 F. Supp. 2d 63 (D.N.H. 2008) (dismissing case challenging McCain’s eligibility); Hollister v.

Soetoro, 601 F. Supp. 2d 179 (D.D.C. 2009) (dismissing interpleader case challenging Obama’s

eligibility), subsequent order, 258 F.R.D. 1 (Mar. 27, 2009) (imposing sanctions for filing claim that was

not “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing

existing law or for establishing new law,” under Rule 11), aff’d, Nos. 09-5080 & 09-5161, 368 F. App’x

154 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1017 (2011), reh’g denied 131 S. Ct. 1627 (2011);

Hornbeck Offshore Services, L.L.C. v. Salazar et al, No. 2:10-cv-01663-MLCF-JCW (E.D. La. Mar. 5,

2011) (denying motion to intervene based on interest in pressing charge that President Obama is not a

natural born citizen in lawsuit challenging Obama Administration’s Moratorium on deepwater drilling in

Gulf of Mexico); Hunter v. U.S. Supreme Court, No. 2:08cv00232, 2009 WL 111683 (N.D. Tex. Jan. 16,

2009), (dismissing case alleging, among other things, that Obama is not eligible), appeal dismissed, No.

09-10246 (5th Cir. July 23, 2009), No. 10-10009 (Feb. 4, 2010), No. 10-100064 (Apr. 9, 2010); In Re

Paul Andrew Mitchell, 304 F. App’x 113 (3rd Cir. Dec. 22, 2008) (denying petition for writ of

mandamus regarding challenge to Obama’s eligibility); Jones v. Obama, No. 2:10-cv-01075 (C.D. Cal.

July 20, 2010) (dismissing case challenging Obama’s eligibility); Judy v. McCain, No. 2:08cv01162 (D.

Nev. Sept. 8, 2008) (dismissing case challenging McCain’s eligibility); Kerchner v. Obama, 669 F. Supp.

2d 477 (D.N.J. 2009) aff’d, 612 F.3d 204 (3d Cir. 2010), cert. denied, 131 S. Ct. 663 (2010); Mackay v.

Obama, No. 2:11-CV-05458-JP (E.D. Pa. Oct. 6, 2011) (dismissing case challenging Obama’s

eligibility), appeal voluntarily dismissed, No. 11- 3862 (3rd Cir. Nov. 2, 2011), appeal dismissed, No 11-

3967 (Dec. 8, 2011); McLanahan v. Obama, No. 2:11-CV-00374-EFS (E.D. Wash. Oct. 13, 2011)

(dismissing complaint challenging, among other things, Obama’s eligibility); Morrow v. Obama, No.

1:08-cv-22345 (S.D. Fla. Mar. 9, 2009) (dismissing complaint challenging Obama’s eligibility); Neely v.

Obama, 2:08-cv-15243 (E.D. Mich. Feb. 4, 2009) (dismissing case challenging, among other things,

Obama’s eligibility); Patriot’s Heart Media Network, Inc. v. Soetoro, No. 1:09-mc-00442-RCL (D.D.C.

Sept. 10, 2009) (rejecting request to convene grand jury to investigate Obama’s eligibility; dismissing

petition for lack of jurisdiction); Purpura v. Sebelius, No. 3:10-CV-04814, 2011 WL 1547768, (D.N.J.

Apr. 21, 2011) (dismissing case challenging Patient Protection and Affordable Care on various grounds,

including that was not signed into law by a person eligible to be President of the United States), aff’d, 446

F. App’x 496 (3d Cir. 2011) cert. denied, 132 S. Ct. 1037 (U.S. 2012) reh’g denied, No. 11-7275, 2012

WL 538800 (U.S. Feb. 21, 2012); Rhodes v. Gates, 5:09-cv-00703-XR (W.D. Tex. Aug. 28, 2009)

(denying TRO seeking to stay military orders due to challenge to Obama’s eligibility); Rhodes v.

MacDonald, No. 409-CV-106CDL, 2009 WL 2997605 (M.D. Ga. Sept. 16, 2009) (denying TRO seeking


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to stay military orders due to challenge to Obama’s eligibility; criticizing complaint as frivolous), recons.

denied, 2009 WL 3111834 (Sept. 18, 2009), subsequent order, 670 F. Supp. 2d 1363 (M.D. Ga. 2009)

(imposing $20,000 sanction for violating Rule 11), aff’d, 368 F. App’x 949, (11th Cir. 2010), reh’g

denied, No. 09-15418-BB (11th Cir. May 14, 2010), app. for stay denied, 131 S.Ct. 44 (2010), cert.

denied, 131 S. Ct. 918 (2011); Robinson v. Bowen, 567 F. Supp. 2d 1144 (N.D. Cal. 2008) (dismissing

case challenging McCain’s eligibility); Roy v. Fed. Election Comm’n, 2:08cv01519, 2008 WL 4921263

(W.D. Wash. Nov. 14, 2008) (dismissing case challenging eligibility of Obama and McCain); Stamper v.

United States, No. 1:08 CV 2593, 2008 WL 4838073 (N.D. Ohio Nov. 4, 2008) (dismissing case

challenging McCain’s and Obama’s eligibility, finding that appeal could not be taken in good faith);

Strunk v. N.Y. Bd. of Elections, No. 1:08-cv-04289-ARR-LB (E.D.N.Y. Oct. 30, 2008) (dismissing case

challenging, among other things, Obama’s eligibility), appeal dismissed, No. 08-5422 (2d Cir. Nov. 14,

2008); Strunk v. U.S. Dept. of State, 693 F. Supp. 2d 112 (D.D.C. Cir. 2010) (dismissing part of FOIA

case regarding Obama records allegedly related to eligibility), mandamus denied, No. 08-5503 (D.C. Cir.

Jan. 8, 2009), mandamus denied, No. 09-5322 (D.C. Cir. Nov. 25, 2009), appeal dismissed, No. 10-5092,

(D.C. Cir. Aug. 26, 2010); see also Strunk v. U.S. Dept. of State, No. CIV.A. 08-2234 RJL, 2012 WL

562398 (D.D.C. Feb. 15, 2012) (dismissing part of FOIA case regarding records of Obama’s mother

allegedly related to Obama’s eligibility); Strunk v. U.S. Dept. of State, No. CIV.A. 08-2234 RJL, 2012

WL 562398 (D.D.C. Feb. 15, 2012) (dismissing part of FOIA case regarding records of Obama’s mother

allegedly related to Obama’s eligibility); In re Super Am. Grand Jury, No. 1:09-mc-00346-RCL (D.D.C.

July 2, 2009) (denying leave to file grand jury presentment challenging Obama’s eligibility); Taitz v.

Obama, 707 F. Supp. 2d 1 (D.D.C. 2010) (dismissing complaint challenging Obama’s eligibility), recons.

denied, No. 1:10-cv-00151 (D.D.C. June 18, 2010), 2d mot. for recons. denied, 754 F.Supp.2d 57 (D.D.C.

2010); Taitz v. Astrue, 806 F. Supp. 2d 214 (D.D.C. 2011) (dismissing FOIA complaint seeking

documents allegedly related to Obama’s eligibility), recons. denied, No. 1:11-cv-00402 (D.D.C. Oct. 17,

2011), appeal pending, No. 11- 5304 (DC Cir. filed Oct. 31, 2011); Taitz v. Ruemmler, No. 1:11- CV-

01421, 2011 WL 4916936 (D. D.C. Oct. 17, 2011) (dismissing FOIA complaint seeking documents

allegedly related to Obama’s eligibility), mandamus dismissed, No. 11-5329 (D.C. Cir. Jan. 23, 2012),

appeal pending, No. 11-5306 (appeal filed Nov. 2, 2011); Taitz v. Astrue, No. 1:11-cv-00519-SOM -RLP

(D. Haw. Oct. 26, 2011) (rejecting ex parte application to compel discovery regarding Obama’s eligibility

in related case pending in the District of Columbia); Thomas v. Hosemann, No. 2:08-cv-00241-KS-MTP

(S.D. Miss. Dec. 18, 2008) (voluntarily dismissing complaint challenging Obama’s eligibility; case

dismissed with prejudice); Thomas v. Hosemann, No. 1:08-mc-00280 (D. Haw. Dec. 18, 2008)

(dismissing action seeking to compel Hawaii Dept. of Health to provide access to documents allegedly

related to Obama’s eligibility); Tisdale v. Obama, No. 3:12-cv-00036-JAG (E.D. Va. Jan. 23, 2012)

(dismissing complaint challenging Obama’s eligibility; finding that Obama is ”natural born citizen”

because he was born in Hawaii), appeal pending, No. 12-1124 (4th Cir. filed Jan. 30, 2012). See also

Lakin Article 138 Complaint, No Number Assigned (US Army Admin. Law Div. Dec 11, 2009)

(rejecting Article 138 Complaint as deficient); Lakin Court Martial - United States v. Lakin, No.

20100995 (Mil. Dist. of Wash. DC Dec. 16, 2010) (court martial finding Lakin guilty of, among other

things, failure to report to deploy; rejecting claim that his failure was based on legitimate questions as to

Obama’s eligibility), appeal withdrawn, (A. Ct. Crim. App. July 28, 2011); Lakin v. Lind, No. ARMY

MISC 20100778 (A. Ct. Crim. App. Oct. 12, 2010) (order) (denying petition for writ of mandamus to

compel discovery factual matters allegedly relating to Obama’s eligibility in court martial proceedings).

III. Birther Cases Rejected by State Courts & Administrative Agencies

Every state court and administrative agency to rule on a birther complaint has rejected it. See, e.g., Allen

v. Obama et al, No. C20121046 (Ariz. Pima County Super. Ct. Feb. 24, 2012) (dismissing complaint

challenging Obama’s eligibility to be on 2012 ballot); Allen v. Obama et al, No. C20121317 (Ariz. Pima

County Super. Ct. Mar. 7, 2012) (dismissing case challenging Obama’s eligibility to be on the 2012

ballot; finding that Obama is a ”natural born citizen” under Wong Kim Ark; and expressly rejecting


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argument that Minor v. Happersett holds otherwise), appeal filed (Ariz. App. Ct. 2d Div. Mar. 8, 2012);

Ankeny v. Governor of the State of Indiana, No. 49D10-0812-PL-055511, 2009 WL 1632611 (Ind.

Marion County Super. Ct. Mar. 16, 2009) (dismissing challenge to McCain’s and Obama’s eligibility),

aff’d, 916 N.E. 2d 678 (Ind. Ct. App. 2009) (holding that Obama, who was born in Hawaii, is a ”natural

born citizen” eligible to be president), transfer denied, 929 N.E. 2d 789 (Ind. 2010); Berg v. Obama, No.

186 MD 2012 (Pa. Commw. Ct. Mar. 16, 2012) (dismissing complaint filed to challenge Obama’s

eligibility to be on 2012 ballot); Brockhausen v. Andrade, No. 08-1001-C368 (Tex. Williamson County

Dist. Ct. (368th) Jan. 22, 2009) (dismissing case challenging Obama’s eligibility); Broe v. Reed, No.

82473-8 (Wash. Jan. 8, 2009) (dismissing writ of mandamus challenging Obama’s eligibility); Connerat

v. Browning, 999 So. 2d 644 (Table) 2008 WL 5378138 (Fla. 2008) (dismissing petition for extraordinary

emergency writ of mandamus challenging Obama’s eligibility); Connerat v. Obama, No. 09003103SC

(Fla. Pinellas County Small Claims Ct. May 5, 2009) (dismissing claim brought against Obama on

grounds that he is not ”natural born citizen”); Connerat v. Obama, No. 09005522SC (Fla. Pinellas

County Small Claims Ct. Jul 28, 2009) (dismissing claim brought against Obama on grounds that he is

not “natural born citizen); Constitution Party v. Lingle, No. 29473, 2008 WL 5125984 (Haw. Dec. 5,

2008) (dismissing complaint contesting 2008 Presidential election results and rejecting contention that

defendant improperly failed to require proof that candidate Barack Obama was qualified to be a candidate

for President of the United States), recons. denied (Dec. 12, 2008); Corbett v. Bowen, No. 30-2008-

00114112-CU-FR- CJC, (Cal. Orange County Super. Ct. June 8, 2009) (dismissing case challenging

Obama’s eligibility); Craig v. Oklahoma, No. MA-109808 (Okla. Oct. 17, 2011) (dismissing application

seeking determination of definition of ”natural born citizen” for purposes of presidential eligibility); Dean

v Obama (In re Objection of Thomas Dean), No Number Assigned, (N.Y Bd. of Elections Determination

Feb. 28, 2011) (rejecting petition challenging Obama’s eligibility to be on 2012 ballot and finding that

petition designating Obama as candidate is valid); Donofrio v. Wells, No. AM-0153-08T2 (N.J. Super.

Ct. App. Div. Oct. 30, 2008) (denying application for emergent relief challenging eligibility of McCain

and Obama), aff’d, No Number Assigned (N.J. Oct. 31, 2008), application for stay denied, 129 S. Ct. 752

(2008); Epperly v. Obama (Alaska Div. of Elections (Director Gail Fenumiai Feb. 28, 2012) (rejecting

petition challenging Obama’s eligibility to be on the 2012 ballot); Farrar v. Obama, No. OSAH-

SECSTATE-CE-1215136-60-MALlHI (Ga. Office of St. Admin. Hrg. Feb. 3, 2012) (rejecting challenge

to Obama’s eligibility to appear on 2012 ballot; finding that Obama was born in U.S. and is a ”natural

born citizen”), decision adopted as final (Ga. Sec’y of State Feb. 7, 2012); appeal dismissed, No.

2012CV211398 (Ga. Fulton County Super. Ct. Mar. 2, 2012), recons. denied (Mar. 14, 2012), appeal

denied, No. S12D1180 (Ga. Apr. 11, 2012); Fitzpatrick v. Obama, No. 09R81 (N.C. Catawba Cty Super.

Ct. May 2009) (rejecting purported “indictment” issued against Obama on grounds that he was not a

natural born citizen eligible to serve as President); Freeman v. Obama, 12 SOEB GP 103 (Ill. Bd. of

Elections Hearing Officer Recommendation Jan. 27, 2012) (Obama’s birth certificate “clearly

establishes” his eligibility for office as a “Natural Born Citizen”), objection overruled (Ill. Bd. of

Elections, Feb. 3, 2012); Galasso v. Obama, No. STE 04534-12 (N.J. Office of Admin Law Feb. 10,

2012) (initial decision rejecting challenge to Obama's 2012 nominating position and finding that,

assuming Obama was born in Hawaii, he is a "natural born citizen" eligible for the presidency per Ankeny

and Wong Kim Ark) ), decision adopted as final (N.J. Sec’y of State Apr. 12, 2012); Garvey v. Obama (In

re Objection of Christopher Garvey), No Number Assigned, (N.Y Bd. of Elections, Feb. 28, 2011)

(rejecting petition challenging Obama’s eligibility to be on 2012 ballot and finding that petition

designating Obama as candidate is valid); Garvey v. N.Y. Bd. of Elections, No. 12-002764 (N.Y.

Supreme Ct. Nassau County Mar. 6, 2012) (rejecting petition for writ of mandamus and seeking show

cause order, challenging New York Bd. of Elections rejection of plaintiff’s ballot challenge); Greenberg

v. Brunner, No. 2008CV1024 (Ohio Wood County Ct. Com. Pl. Jan. 14, 2009) (dismissing case

challenging Obama’s eligibility) (as reported by Ohio Secretary of State); Hendershot v. Kennedy, No.

01-CV-2011-002321.00 (Al. Jefferson County-Birmingham Cir. Ct. Jan. 9, 2012) (dismissing case

challenging Obama’s eligibility to appear on 2012 ballot); In re John McCain’s Ineligibility to Be on

Presidential Primary Ballot in Pa. No. 184 MD 2008 (Pa. Commw. Ct. Mar. 13, 2008) (dismissing case


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challenging McCain’s eligibility), aff’d, 944 A.2d 75 (Pa. 2008); Jackson v. Obama, 12 SOEB GP 104

(Ill. Bd. of Elections Hearing Officer Recommendation Jan. 27, 2012) (Obama’s birth certificate “clearly

establishes” his eligibility for office as a “Natural Born Citizen”), objection overruled (Ill. Bd. of

Elections, Feb. 3, 2012); Justice v. Fuddy, No. 1CC09-1-000783 (Haw. Cir. Ct. Oct. 9, 2009) (dismissing

case seeking access to records allegedly relevant to Obama’s eligibility), aff’d 253 P.3d 665 (Haw. Ct.

App. 2011), as corrected (Apr. 26, 2011); Kerchner v. Obama, No. 85 MD 2012 (Pa. Commw. Ct. Mar.

1, 2012) (dismissing complaint challenging Obama’s eligibility to be on 2012 ballot); Kesler v. Obama,

No. 2012-162 (Ind. Election Comm’n Feb. 24, 2012) (denying objection seeking to keep Obama off 2012

ballot on grounds that he is not a “natural born citizen”) (written decision unavailable but video of hearing

is available at www.in.gov/sos/022412_Video_3.html (last visited April 11, 2012)); Keyes v. Bowen, No.

34-2008-80000096-CUWMGDS (Ca. Sacramento Cty Super. Ct. Mar. 13, 2009) (dismissing petition for

writ of mandate in case challenging, among other things, Obama’s eligibility to be on the California

ballot; assessing costs against plaintiff), aff’d, 189 Cal. App. 4th 647, 117 Cal.Rptr.3d 207 (Cal. Ct. App.

2010) (affirming dismissal), pet. for rev. denied, No. S188724 (Cal. Feb. 2, 2011), cert denied, 132 S. Ct.

99 (2011); Lightfoot et al v. Bowen et al, No. S168690 (Cal. Dec. 5, 2008) (denying petition for writ of

mandate and stay), app. for stay denied, 129 S. Ct. 1053 No. 08A524 (Jan. 26, 2009); Marquis v. Reed,

No. 08-2-34955-1 SEA (Wash. King County Super. Ct. Oct. 27, 2008) (dismissing case challenging

Obama’s eligibility); Martin v. Lingle, No. 29414, 2008 WL 4684786 (Haw. Oct. 22, 2008) (rejecting

petition seeking disclosure of Obama’s birth records allegedly related to his eligibility); Martin v. Lingle,

No. 1CC08-1-002147 (Haw. Cir. Ct. 1st Cir. Jan. 12, 2009) (dismissing case seeking to compel disclosure

of Obama’s birth records based on challenge to his eligibility), recons. denied, (Jan. 27, 2009), appeal

dismissed, No. 29643, 2009 WL 1669050 (Haw. Ct. App. June 9, 2009), cert. denied, No. 29643, 2009

WL 2372096 (Haw. Aug. 3, 2009); Martin v. Bennett, No. 1CC10-1-000969 (Haw. Cir. Ct. Sept. 7,

2010) (dismissing case seeking to compel disclosure of Obama’s birth records based on challenge to his

eligibility); Mcinnish v. Chapman, No. 1110665 (Al. Sup. Ct. Mar. 27, 2012) (denying petition for writ

of mandamus to require secretary of state to order Obama to produce original birth certificate); Meroni v.

McHenry County Grand Jury Foreman, No. 09mr339 (Ill. Cir. Ct. Jan. 20, 2010) (dismissing case

seeking to compel grand jury investigation into Obama’s eligibility); Meroni et al v. Obama, 12 SOEB

GP 104 (Ill. Bd. of Elections Hearing Officer Recommendation Jan. 27, 2012) (Obama’s birth certificate

“clearly establishes” his eligibility for office as a “Natural Born Citizen”), objection overruled (Ill. State

Bd. of Elections, Feb. 3, 2012); Neal v. Brunner, No. 2008CV72726 (Ohio Ct. Com. Pl. Wood County

Nov. 17, 2008) (dismissing case challenging Obama’s eligibility) (as reported by Ohio Secretary of

State); Patriot’s Heart Media Network v. Ill. Bd. of Elections, No. 10CH000605 (Ill. McHenry County

Chancery. Ct. Mar. 8, 2010) (dismissing case challenging Obama’s eligibility to be on ballot); Powell v.

Obama, No. OSAH-SECSTATE-CE-1216823-60-MALIHI (Ga. Office of St. Admin. Hrg. Feb. 3, 2012)

(rejecting challenge to Obama’s eligibility to appear on 2012 ballot; finding that Obama was born in U.S.

and is a “natural born citizen”), decision adopted as final (Ga. Sec’y of State Feb. 7, 2012), appeal

dismissed, No. 2012CV211528 (Ga. Fulton County Super. Ct. Mar. 2, 2012), motion for injunction

denied, No. S12D1077 (Ga. Mar. 13, 2012), appeal denied (Ga. Apr. 4, 2012); Purpura v Obama, No.

STE 04588-12 (N.J. Office of Admin Law Apr. 10, 2012) (initial decision rejecting challenge to Obama's

2012 nominating position and finding that, assuming Obama was born in Hawaii, he is a "natural born

citizen" eligible for the presidency per Ankeny and Wong Kim Ark) ), decision adopted as final (N.J.

Sec’y of State Apr. 12, 2012); Ripley v. Obama, No. 2012-163 (Ind. Election Comm’n Feb. 24, 2012)

(denying objection seeking to keep Obama off 2012 ballot on grounds that he is not a “natural born

citizen”) (written decision unavailable but video of hearing is available at

www.in.gov/sos/022412_Video_3.html (last visited April 11, 2012)); Schneller v. Cortes, No. 199 MM

2008 (Pa. Jan. 8, 2009) (denying emergency application challenging Obama’s eligibility), pet. for cert.

dismissed, 129 S. Ct. 2830 (2009); Schneller v. Obama, No. 75 MD 2012 (Pa. Commw. Ct. Mar. 2. 2012)

(dismissing complaint challenging Obama’s eligibility to be on 2012 ballot), appeal pending, No. 137 MT

201 (Pa. filed Mar. 12, 2012); Sorenson v. Riley, No. CV-2008-001906.00 (Ala. Montgomery County

Cir. Ct. Jan. 1, 2009) (dismissing complaint challenging Obama’s and McCain’s eligibility); Sorenson v.


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Kennedy, No. 01-CV-2011-0023.00 (Ala. Montgomery County Cir. Ct. Jan. 19, 2012) (dismissing

complaint challenging Obama’s eligibility to be on 2012 ballot); Spuck v. Secretary of State, No.

2008CV1116 (Ohio Erie County Ct. Com. Pl. Dec 2008) (dismissing case challenging Obama’s

eligibility) (as reported by Ohio Secretary of State); Strunk v. Patterson, No. 029641/2008 (N.Y. King

County Supr. Ct. Nov. 3, 2008) (dismissing case seeking to stay 2008 election on various grounds);

Strunk v. Patterson, No. 029642/2008 (N.Y. King County Supr. Ct. Nov. 24, 2009) (denying motion for

subpoenas to multiple government agencies for documents allegedly relating to Obama’s eligibility and

denying motion for protective order); Strunk v. N.Y. Bd. of Elections et al, No. 006500/2011 (N.Y. King

County Supr. Ct. Apr. 12, 2012) (dismissing complaint challenging, among other things, President

Obama’s eligibility to his office; expressly rejecting the birther claim that Obama is ineligible on the basis

of his father’s citizenship as frivolous, and issuing a show cause order as to why sanctions should not be

imposed upon plaintiff); Strunk v. Obama (In re Objection of Christopher-Earl: Strunk), No Number

Assigned, (N.Y Bd. of Elections Feb. 28, 2012) (rejecting petition challenging Obama’s eligibility to be

on 2012 ballot and finding that petition designating Obama as candidate is valid); Stumpo v. Gov. of

Michigan, No. 08-140-MM (Mich. Dist. Ct. (30th) Mar. 31, 2009) (granting summary disposition in case

filed challenging Obama’s eligibility), appeal dismissed, No. 291681 (Mich. Ct. App. June 3, 2009),

recons. denied (Oct. 1, 2009); Sullivan v. Marshall, No. 08-cvs-021393 (N.C. Super. Ct. Mar. 16, 2009)

(dismissing case challenging Obama’s eligibility); Sullivan v. N.C. Sec’y of State, No. 08-cv-1076 (N.C.

Super. Ct. Oct. 29, 2008) (dismissing case challenging Obama’s eligibility); Sunahara v. Haw. Dept. of

Health, No. 1cc12-1-000006 (Haw. 1st Dist. Ct. Mar. 8, 2012) (complaint seeking access to birth/death

records of Sunahara based on alleged connection to Obama’s eligibility); Swensson v. Obama, No.

OSAH-SECSTATE-CE-1216218-60-MALIHI (Ga. Office of St. Admin. Hrg. Feb. 3, 2012) (rejecting

challenge to Obama’s eligibility to appear on 2012 ballot; finding that Obama was born in U.S. and is a

“natural born citizen”), decision adopted as final (Ga. Sec’y of State Feb. 7, 2012), No. 2012CV211527

(Ga. Fulton County Super. Ct. Mar. 2, 2012), motion for injunction denied, No. S12D1076 (Ga. Mar. 13,

2012), appeal denied (Ga. Apr. 4, 2012); Swihart v. Obama, No. 2012-176 (Ind. Election Comm’n Feb.

24, 2012) (denying objection seeking to keep Obama off 2012 ballot on grounds that he is not a “natural

born citizen”) (written decision unavailable but video of hearing is available at

www.in.gov/sos/022412_Video_3.html (last visited April 11, 2012)); Taitz v. Fuddy, No. 1CC11-1-

001731 (Haw. 1st Cir. Ct. Nov. 10, 2011) (dismissing appeal of agency refusal to grant access to

documents allegedly related to Obama’s eligibility), recons. denied (Jan. 6, 2012), recons. denied (Feb. 7,

2012); Taitz v. Obama, No. BLC 2011-4 (N.H. Ballot Law Comm’n Nov. 18, 2011) (dismissing petition

challenging Obama’s eligibility to be on 2012 ballot), recons. denied (Nov. 28, 2011); Taitz v. Obama,

No. Number Assigned (Haw. Office of Elections Dec. 2, 2011) (rejecting petition seeking to challenge

Obama’s eligibility to be on 2012 ballot and demand for emergency hearing re: same); Taitz v. Gardner,

No. 2011-0880 (N.H. Dec. 27, 2011) (denying petition for original jurisdiction and/or appeal challenging

order entered by N.H. Ballot Law Comm’n in Taitz v. Obama, No. BLC 2011-4 (N.H. Ballot Law

Comm’n Nov. 18, 2011)); Taitz v. Nishimura, No. SPCW-12-000014, 2012 WL 120367 (Haw. Jan. 12,

2012) (denying petition for writ of mandamus to force circuit court judge to issue order forcing Dept. of

Health to grant access to documents allegedly related to Obama’s eligibility); Taitz v. Obama, No

Number Assigned (Ind. Election Div. Feb. 16, 2012) (notice to Taitz that her election challenge could not

be accepted due to failure to follow appropriate procedures); Terry v. Handel, No. 2008cv158774 (Ga.

Fulton County Super. Ct. Oct. 24, 2008) (dismissing case challenging Obama’s eligibility), appeal

dismissed, No. S09D0284 (Ga. Dec. 3, 2008), recons. denied, (Ga. Jan. 12, 2009), appeal dismissed,

No. S09A1373 (Ga. May 18, 2009); Thompson v. Kennedy, No. 75-CV-2012-000003.00 (Ala. St. Clair-

Pell County Cir. Ct. Jan. 13, 2012) (dismissing complaint challenging Obama’s eligibility to be on 2012

ballot); Thompson v. Obama (In re Objection of Julianne Thompson), No Number Assigned, (N.Y Bd. of

Elections Determination Feb. 28, 2011) (rejecting petition challenging Obama’s eligibility to be on 2012

ballot and finding that petition designating Obama as candidate is valid); Van Allen v. Obama (In re

Objection of H. William Van Allen), No Number Assigned, (N.Y. Bd. of Elections Determination Feb. 28,

2011) (rejecting petition challenging Obama’s eligibility to be on 2012 ballot and finding that petition


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designating Obama as candidate is valid); Vestal v. Obama, No Number Assigned (N.C. Bd. of Elections

Dec. 13, 2011) (rejecting purported “Complaint Under §19-3 Elections Fraud; Emergency Hearing

Requested” filed in apparent attempt to challenge Obama’s eligibility to remain on the ballot);

Volodarsky v Obama (In re Objection of Leonard Volodarsky), No Number Assigned, (N.Y Bd. of

Elections Feb. 28, 2011) (rejecting petition challenging Obama’s eligibility to be on 2012 ballot and

finding that petition designating Obama as candidate is valid); Welden v. Obama, No. OSAH-

SECSTATE-CE-1215137-60-MALIHI (Ga. Office of St. Admin. Hrg. Feb. 3, 2012) (rejecting challenge

to Obama’s eligibility to appear on 2012 ballot; finding that Obama was born in U.S. and is a “natural

born citizen”), decision adopted as final (Ga. Sec’y of State Feb. 7, 2012), appeal dismissed, No.


S12D1059 (Ga. Mar. 13, 2012), appeal denied (Ga. Apr. 4, 2012); Weyl v. Obama, No. 2012-161(Ind.

Election Comm’n Feb. 24, 2012) (denying objection seeking to keep Obama off 2012 ballot on grounds

that he is not a “natural born citizen”) (written decision unavailable but video of hearing is available at

www.in.gov/sos/022412_Video_3.html (last visited April 11, 2012)); Wolf v. Fuddy, No. 1CC11-1-

002276 (Haw. 1st Cir. Ct. Sept. 30, 2011) (dismissing case seeking to compel disclosure of documents

allegedly related to Obama’s eligibility); Wrotnowski v. Bysiewicz, 958 A. 2d 709 (Conn. 2008)

(dismissing case challenging Obama’s eligibility), application for stay denied, 129 S. Ct. 775 (2008).


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Exhibit B


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m DECISIONS RECOGNIZING THAT OBAMA IS A “NATURAL BORN CITIZEN”

Last Updated: May 3, 2012 Page 1

TABLE OF CONTENTS

DECISION ............................................................................................................................................................. TAB

Allen v. Obama et al, No. C20121317 (Ariz. Pima County Super. Ct., Mar. 7,

2012) (dismissing case challenging Obama’s eligibility to be on the 2012 ballot;

finding that Obama is a ”natural born citizen” under Wong Kim Ark; and

expressly rejecting argument that Minor v. Happersett holds otherwise), appeal

filed (Ariz. App. Ct. 2d Div., Mar. 8, 2012) .................................................................................. A

Ankeny v. Daniels, 916 N.E.2d 678 (Ind. Ct. App. 2009) (“based upon the

language of Article II, Section 1, Clause 4 and the guidance provided by Wong

Kim Ark, we conclude that persons born within the borders of the United States

are “natural born citizen’s” for Article II, Section 1 purposes, regardless of the

citizenship of their parents”) transfer denied 929 N.E.2d 789 (Ind. 2010) ................................... B

Farrar v. Obama, No. OSAH-SECSTATE-CE-1215136-60-MALlHI (Ga. Office

of St. Admin. Hrg. Feb. 3, 2012) (rejecting challenge to Obama’s eligibility to

appear on 2012 ballot; finding that Obama was born in U.S. and is a ”natural born

citizen”), decision adopted as final (Ga. Sec’y of State Feb. 7, 2012). appeal

dismissed, No. 2012CV211398 (Ga. Fulton County Super. Ct. Mar. 2, 2012),

recons. denied (Mar. 14, 2012), appeal denied, No. S12D1180 (Ga. Apr. 11,

2012). ............................................................................................................................................. C

Galasso v. Obama, No. STE 04534-12 (N.J. Office of Admin Law Apr. 10, 2012)

(initial decision rejecting challenge to Obama's 2012 nominating position and

finding that, assuming Obama was born in Hawaii, he is a "natural born citizen"

eligible for the presidency per Ankeny and Wong Kim Ark) ), decision adopted as

final (N.J. Sec’y of State Apr. 12, 2012) ........................................................................................ D

Freeman v. Obama, 12 SOEB GP 103 (Ill. Bd. of Elections Hearing Officer

Recommendation Jan. 27, 2012) (Obama’s birth certificate “clearly establishes”

his eligibility for office as a “natural born citizen”), objection overruled (Ill.

Board of Elections, Feb. 3, 2012) .................................................................................................. E

Jackson v. Obama, 12 SOEB GP 104 (Ill. Bd. of Elections Hearing Officer

Recommendation Jan. 27, 2012) (Obama’s birth certificate “clearly establishes”

his eligibility for office as a “natural born citizen”), objection overruled (Ill. Bd.

of Elections, Feb. 3, 2012) ............................................................................................................. F


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Powell v. Obama, No. OSAH-SECSTATE-CE-1216823-60-MALIHI (Ga. Office

of St. Admin. Hrg. Feb. 3, 2012) (rejecting challenge to Obama’s eligibility to

appear on 2012 ballot; finding that Obama was born in U.S. and is a “natural born

citizen”), decision adopted as final (Ga. Sec’y of State Feb. 7, 2012), appeal

dismissed, No. 2012CV211528 (Ga. Fulton County Super. Ct., Mar. 2, 2012),

motion for injunction denied, No. S12D1077 (Ga. Mar. 13, 2012), appeal denied

(Ga. Apr. 4, 2012) ......................................................................................................................... C1

Purpura v Obama, No. STE 04588-12 (N.J. Office of Admin Law Apr. 10, 2012)

(initial decision rejecting challenge to Obama's 2012 nominating position and

finding that, assuming Obama was born in Hawaii, he is a "natural born citizen"

eligible for the presidency per Ankeny and Wong Kim Ark) ), decision adopted as

final (N.J. Sec’y of State Apr. 12, 2012) ...................................................................................... D2

Strunk v. NY Bd. of Elections et al, No. 006500/2011 (N.Y. King County Supr.

Ct. Apr. 12, 2012) (dismissing complaint challenging, among other things,

President Obama’s eligibility to his office; expressly rejecting the birther claim

that Obama is ineligible on the basis of his father’s citizenship as frivolous, and

issuing a show cause order as to why sanctions should not be imposed upon

plaintiff) ......................................................................................................................................... G

Swensson v. Obama, No. OSAH-SECSTATE-CE-1216218-60-MALIHI (Ga.

Office of St. Admin. Hrg. Feb. 3, 2012) (rejecting challenge to Obama’s

eligibility to appear on 2012 ballot; finding that Obama was born in U.S. and is a

“natural born citizen”), decision adopted as final (Ga. Sec’y of State Feb. 7,

2012), No. 2012CV211527 (Ga. Fulton County Super. Ct., Mar. 2, 2012), motion

for injunction denied, No. S12D1076 (Ga. Mar. 13, 2012), appeal denied (Ga.

Apr. 4, 2012) ................................................................................................................................. C3

Tisdale v. Obama, No. 3: 12-cv-00036-JAG (E.D. Va. Jan. 23, 2012) (order

dismissing complaint) (dismissing in forma pauperis complaint pursuant to 28

USC 1915(e)(2)(B)(ii) and holding that “[i]t is well settled that those born in the

United States are considered natural born citizens” and that plaintiff’s

contentions otherwise are “without merit”), appeal pending, No. 12-1124 (4th

Cir., filed Jan. 30, 2012) ................................................................................................................. H

1 The Powell v. Obama case, while a separate objection/action, was consolidated with Farrar v. Obama before

the OSAH, the Georgia Secretary of State, and the trial court appeal.

2 The Purpura et al v. Obama case, while a separate objection/action, was consolidated with Galasso v.

Obama before the New Jersey Office of Administrative law and New Jersey Secretary of State.

3 The Swensson v. Obama case, while a separate objection/action, was consolidated with Farrar v. Obama

before the OSAH, the Georgia Secretary of State, and the trial court appeal.


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Welden v. Obama, No. OSAH-SECSTATE-CE-1215137-60-MALIHI (Ga.

Office of St. Admin. Hrg. Feb. 3, 2012) (rejecting challenge to Obama’s

eligibility to appear on 2012 ballot; finding that Obama was born in U.S. and is a

“natural born citizen”), decision adopted as final (Ga. Sec’y of State Feb. 7,

2012), appeal dismissed, No. 2012CV211527 (Ga. Fulton County Super. Ct.,

Mar. 2, 2012), motion for injunction denied, No. S12D1059 (Ga. Mar. 13, 2012),

appeal denied (Ga. Apr. 4, 2012) ................................................................................................. C4

4 The Welden v. Obama case, while a separate objection/action, was consolidated with Farrar v. Obama before

the OSAH, the Georgia Secretary of State, and the trial court appeal.


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TAB A


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Mary Dimond

Judicial Administrative Assistant

ARIZONA SUPERIOR COURT, PIMA COUNTY

HON. RICHARD E. GORDON

JUDGE

CASE NO. C-20121317

DATE: March 07, 2012

KENNETH ALLEN,

Plaintiff,

VS.

ARIZONA DEMOCRATIC PARTY, et al.,

Defendants.

R U L I N G

IN CHAMBERS UNDER ADVISEMENT RULING

Pending before the Court is Plaintiff’s “Ballot Challenge Pursuant to A.R.S. § 16-351(B) and Article II

Section 1 Clause 5 of the United States Constitution and Rule 8.” Plaintiff claims that President Obama cannot

stand for reelection because he is not a “natural born citizen” as required by the United States Constitution.

U.S. Const. art. II, § 1, cl. 5. According to Plaintiff this is so because President Obama’s father was a resident

of Kenya and thus a British citizen. (Complaint ¶¶ 4-6, 9-34.)

The Arizona Democratic Party has filed a Motion to Dismiss pursuant to Ariz. R. Civ. P. 12(b)(6), (7).

The Democratic Party argues that dismissal is appropriate based on the absence of legal merit and because

Plaintiff failed to make the Secretary of State and all of Arizona’s county boards of supervisors parties to this

lawsuit. The Court has reviewed all of the memoranda submitted and, yesterday, on March 6, 2012, held a

hearing. For the following reasons, the Court will deny the relief requested by Plaintiff and dismiss this case.

A. Standard

When determining whether to dismiss a claim, the trial court should consider the well-pled factual

allegations contained in the pleading. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419 ¶ 7, 189 P.3d 344,

346 (2008). The trial court must assume the truth of the pleading’s well-pled factual allegations and indulge all

reasonable inferences resulting therefrom. Id. Dismissal is proper only if the plaintiff “would not be entitled to

relief under any facts susceptible of proof in the statement of the claim.” Mohave Disposal, Inc. v. City of

Kingman, 186 Ariz. 343, 346, 922 P.2d 308, 311 (1996).

FILED

PATRICIA NOLAND

CLERK, SUPERIOR COURT

3/7/2012 3:47:54 PM


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m R U L I N G

Page 2 Date: March 07, 2012 Case No.: C-20121317

Mary Dimond


B. Discussion

Preliminarily, the Court notes that Plaintiff’s ballot challenge does not fit neatly, if at all, within A.R.S.

§ 16-351. Although Arizona courts have addressed challenges dealing with federal offices, see, e.g., Harless v.

Lockwood, 85 Ariz. 97, 100, 332 P.2d 887, 888 (1958), the current controversy over the President’s

qualification under the United States Constitution to hold the office of the President of the United States is

uniquely federal in character and better suited for the federal courts to handle following the upcoming

Presidential election. See Markham Robinson v. Bowen, 567 F.Supp.2d 1144, 1147 (N.D.Cal. 2008); see also

Keyes v. Bowen, 117 Cal.Rptr.3d 207, 216-17 (Cal. Ct. App.), cert. denied, U.S. , 132 S.Ct. 199 (2011).

But even assuming that the current challenge falls within this Court’s purview to decide, there are indispensible

parties, most notably Arizona’s Secretary of State, who has not been named in the lawsuit. See A.R.S.

§ 16-344(A), (B). Most importantly, Arizona courts are bound by United States Supreme Court precedent in

construing the United States Constitution, Arizona v. Jay J. Garfield Bldg. Co., 39 Ariz. 45, 54, 3 P.2d 983, 986

(1931), and this precedent fully supports that President Obama is a natural born citizen under the Constitution

and thus qualified to hold the office of President. See United States v. Wong Kim Ark, 169 U.S. 649, 702-03

(1898) (addressing U. S. Const. amend. XIV); Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678,

684-88 (Ind. App. 2010) (addressing the precise issue). Contrary to Plaintiff’s assertion, Minor v. Happersett,

88 U.S. 162 (1874), does not hold otherwise.

Finally, Plaintiff has filed a Motion to Stay Proceedings to Gather Important Information for Court’s

Deliberations. Plaintiff argues that he would like more time to present evidence and case law and, given his pro

se status, leniency is proper. The absence of an attorney, however, does not entitle Plaintiff to favorable

consideration, Copper State Bank v. Saggio, 139 Ariz. 438, 442, 679 P.2d 84, 88 (App. 1984), and – in any

event – the matters which Plaintiff seeks to present would not, in the Court’s opinion, change the outcome of

the decision in this case. Cf. Ariz. R. Civ. P. 56(f). The Court will not grant a stay under these circumstances.

C. Conclusion

Accordingly, and upon careful consideration,

IT IS ORDERED GRANTING the Arizona Democratic Party’s Motion to Dismiss for the reasons

stated herein and DENYING all relief requested.

IT IS FURTHER ORDERED DISMISSING with prejudice Plaintiff’s “Ballot Challenge Pursuant to

A.R.S. § 16-351(B) and Article II Section 1 Clause 5 of the United States Constitution and Rule 8.”


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m R U L I N G

Page 3 Date: March 07, 2012 Case No.: C-20121317

Mary Dimond


IT IS FURTHER ORDERED DENYING all other pending motions, including the Arizona

Democratic Party’s Motion to Strike and Plaintiff’s Motion to Stay Proceedings to Gather Important

Information for Court’s Deliberations.

cc: Daniel S. Jurkowitz, Esq.

Paul F. Eckstein, Esq.

Kenneth Allen

√med Case Management Services - Civil

Clerk of Court - Under Advisement Clerk

(ID: eb559920-8b82-4e77-a9ba-e92c395b0297)


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TAB B


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m Ankeny v. Governor of State of Indiana, 916 N.E.2d 678 (2009)

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 1

916 N.E.2d 678Court of Appeals of Indiana.

Steve ANKENY and BillKruse, Appellants–Plaintiffs,

v.GOVERNOR OF the STATE OF

INDIANA, Appellee–Respondent.

No. 49A02–0904–CV–353. | Nov.12, 2009. | Rehearing Denied Jan. 15,2010. | Transfer Denied April 1, 2010.

Synopsis

Background: Citizens filed petition for extraordinary writ ofprohibition against Governor, seeking to prevent Governorfrom issuing “Certificate of Ascertainment” officiallyappointing the electors who cast the State's votes in theElectoral College, the body deciding the election for thePresident of the United States. The Superior Court, MarionCounty, David J. Dreyer, J., granted Governor's motion todismiss for failure to state a claim upon which relief could begranted. Citizens appealed.

Holdings: The Court of Appeals, Brown, J., held that:[1] sitting Senators' placement on ballot as candidates forPresident of the United States did not violate constitutionalrequirement that no Senator be appointed an Elector, and[2] persons born within the borders of the United States are“natural born Citizens,” as required for qualification to bePresident of the United States, regardless of the citizenship oftheir parents.

Affirmed.

West Headnotes (10)

[1] Attorney and ClientRights of litigants to act in person or by

attorney

Pro se litigants are held to the same standardas licensed lawyers; Court of Appeals will notindulge in any benevolent presumptions on theirbehalf, or waive any rule for the orderly andproper conduct of their appeal.

1 Cases that cite this headnote

[2] Appeal and ErrorInsufficient discussion of objections

Issues for which pro se appellants failed todevelop cogent argument or cite to authority werewaived on appeal.

[3] Appeal and ErrorStriking out or dismissal

When reviewing a motion to dismiss, appellatecourt views the pleadings in the light mostfavorable to the nonmoving party, withevery reasonable inference construed in thenonmovant's favor. Trial Procedure Rule 12(B)(6).

[4] Pretrial ProcedureInsufficiency in general

Pretrial ProcedureConstruction of pleadings

A complaint may not be dismissed for failure tostate a claim upon which relief can be grantedunless it is clear on the face of the complaintthat the complaining party is not entitled torelief; however, a court need not accept as trueany conclusory, non-factual assertions or legalconclusions. Trial Procedure Rule 12(B)(6).

[5] Appeal and ErrorExtent of Review Dependent on Nature of

Decision Appealed from

While appellate court reviewing grant of a motionto dismiss for failure to state a claim does not testthe sufficiency of the facts alleged with regardto their adequacy to provide recovery, the courtdoes test their sufficiency with regard to whetherthey have stated some factual scenario in which alegally actionable injury has occurred.

[6] JudgmentMotion or Other Application


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Generally, when a motion to dismiss for failureto state a claim is supplemented with materialsoutside the pleadings, it should be treated as amotion for summary judgment. Trial ProcedureRule 12(B)(6).

[7] JudgmentMotion or Other Application

Pretrial ProcedureMatters considered in general

When examination of the face of a complaintalone reveals that the plaintiff will not beentitled to relief under any set of circumstances,consideration of external materials aimed atsubstantiating or contradicting the complaint'sfactual allegations is irrelevant, because a fortiorithe complaint fails to state a claim uponwhich relief can be granted under any factualscenario; in that instance, the trial court shouldexclude material outside the pleadings which aresubmitted with a motion to dismiss for failureto state a claim, rather than convert the motioninto one for summary judgment, because theexternal material are irrelevant to the motion.Trial Procedure Rule 12(B)(6).

[8] United StatesPresidential electors

Sitting United States Senators' placement onballot as candidates for President of the UnitedStates did not violate constitutional requirementthat no Senator be appointed an Elector inElectoral College. U.S.C.A. Const. Art. 2, § 1, cl.2.

[9] United StatesPresidential electors

Federal constitution vests in the various statelegislatures the authority to determine how theirstate chooses their Electors for Electoral College,the body deciding the election for the President ofthe United States. U.S.C.A. Const. Art. 2, § 1, cl.2; U.S.C.A. Const.Amend. 12.

[10] United StatesPresident

Persons born within the borders of the UnitedStates are “natural born Citizens,” as required forqualification to be President of the United States,regardless of the citizenship of their parents.U.S.C.A. Const. Art. 2, § 1, cl. 4.

Attorneys and Law Firms

*679 Steve Ankeny, New Castle, IN, Bill Kruse, Roselawn,IN, Appellants pro se.

Gregory F. Zoeller, Attorney General of Indiana, FrancesBarrow, Deputy Attorney General, Indianapolis, IN,Attorneys for Appellee.

Opinion

OPINION

BROWN, Judge.

[1] [2] Steve Ankeny and Bill Kruse (collectively,“Plaintiffs”), pro se, appeal the trial court's grant of a motionto dismiss filed by Mitch Daniels, in his official capacity asthe Governor of the State of Indiana (“Governor”). Plaintiffsraise nine issues, which we revise and restate as whether thetrial court erred by granting the motion to dismiss under Ind.

Trial Rule 12(B)(6). 1 We affirm. 2

*680 The relevant facts follow. On December 9, 2008,Plaintiffs filed a “PETITION FOR EXTRAORDINARY

WRIT OF PROHIBITION” against the Governor 3 to preventthe Governor “from issuing a ‘Certificate of Ascertainment,’or any other document, to Congress of the United Statescontaining any popular votes for Barack Obama and JoeBiden for the appointment as Chief Electors ... [or] JohnMcCain and Sarah Palin for the appointment of Electors.”Appellants' Appendix at 6. On January 30, 2009, theGovernor filed a motion to dismiss alleging in part that “thePlaintiffs have failed to state a claim upon which relief canbe granted.” Appellee's Appendix at 1. The Governor alsofiled a memorandum in support of the motion to dismiss.On February 17, 2009, the Plaintiffs filed their opposition tothe Governor's motion to dismiss. On March 16, 2009, the











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trial court granted the Governor's motion to dismiss after ahearing. On April 13, 2009, the Plaintiffs filed their notice ofappeal.

[3] [4] [5] [6] [7] The sole issue is whether the trialcourt erred when it dismissed Plaintiffs' complaint. A motionto dismiss for failure to state a claim tests the legal sufficiencyof the claim, not the facts supporting it. General Cas. Ins.Co. v. Bright, 885 N.E.2d 56, 57 (Ind.Ct.App.2008) (citingCharter One Mortg. Corp. v. Condra, 865 N.E.2d 602, 604(Ind.2007)). Thus, our review of a trial court's grant or denialof a motion based on Trial Rule 12(B)(6) is de novo. Id. at 58.When reviewing a motion to dismiss, we view the pleadingsin the light most favorable to the nonmoving party, with everyreasonable inference construed in the nonmovant's favor. Id.A complaint may not be dismissed for failure to state a claimupon which relief can be granted unless it is clear on the faceof the complaint that the complaining party is not entitled to

relief. 4 *681 Id. However, a court need not accept as trueany “conclusory, non-factual assertions or legal conclusions.”Irish v. Woods, 864 N.E.2d 1117, 1120 (Ind.Ct.App.2007).“Thus, while we do not test the sufficiency of the factsalleged with regards to their adequacy to provide recovery,we do test their sufficiency with regards to whether or notthey have stated some factual scenario in which a legallyactionable injury has occurred.” Trail v. Boys and Girls Clubsof Northwest Indiana, 845 N.E.2d 130, 134 (Ind.2006).

In their complaint, the Plaintiffs appear to suggestthat the Governor has a duty to determine a person'seligibility to become President in issuing the “Certificateof Ascertainment” “officially appoint[ing] the electors” whocast the State of Indiana's votes in the Electoral College,the body which decides the election for the President of theUnited States (“President”). Transcript at 13. Specifically,Plaintiffs appear to argue that the Governor did not complywith this duty because: (A) neither President Barack Obamanor Senator John McCain were eligible “to be appointed‘Elector in Chief’ in violation of Article II, Section 1, Clause2's prohibition that no United States Senator currently holdingthat office shall be appointed Elector for any State,” and (B)neither President Barack Obama nor Senator John McCainwere eligible to hold the office of President because neitherwere “born naturally within any Article IV State of the 50United States of America....” Appellants' Appendix at 11–12,16–18.

Initially, we note that the Plaintiffs do not cite to any authorityrecognizing that the Governor has a duty to determine theeligibility of a party's nominee for the presidency. The

Plaintiffs do not cite to authority, nor do they develop a cogentlegal argument stating that a certificate of ascertainment hasany relation to the eligibility of the candidates. However, wenote that even if the Governor does have such a duty, for thereasons below we cannot say that President Barack Obama orSenator John McCain was not eligible to become President.We will handle each of Plaintiffs' arguments in turn.

A. Sitting Senator

[8] First, Plaintiffs argue that “[t]he Constitution of theUnited States enumerates qualification for the Office ofPresidential and Vice–Presidential Electors, and no ‘sittingSenator,’ such as Senator Barack Obama and Senator JosephBiden, or Senator John McCain, was qualified.” Appellants'Brief at 8. We hold for the reasons stated below that Plaintiffsfailed to state a cognizable legal claim upon which relief canbe granted.

In evaluating Plaintiffs' claim, one need not go further thancompare their framing of the electoral process in the Stateof Indiana with Indiana's electoral process as constructed bystate and federal statute, and indeed by the U.S. Constitutionitself. Article II, Section 1 of the U.S. Constitution sets forthhow the President is chosen; the mechanism used is called the*682 Electoral College. See 3 U.S.C. § 4. Article II, Section

1 describes how the Electoral College is filled as follows:

Each State shall appoint, in such Manneras the Legislature thereof may direct, aNumber of Electors, equal to the wholeNumber of Senators and Representativesto which the State may be entitled in theCongress: but no Senator or Representative,or Person holding an Office of Trust orProfit under the United States, shall beappointed an Elector.

U.S. CONST. art. II, § 1, cl. 2. Much of the rest of ArticleII, Section 1 was changed by the Twelfth Amendment whichwas ratified in June 1804. The Twelfth Amendment directs:

The Electors shall meet in their respectivestates, and vote by ballot for President ...and transmit sealed to the seat of thegovernment of the United States, directed tothe President of the Senate;—The Presidentof the Senate shall, in the presence of theSenate and House of Representatives, openall the certificates and the votes shall then becounted;—The person having the greatest


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number of votes for President, shall be thePresident ...

U.S. CONST. amend. XII.

[9] Thus, the U.S. Constitution vests in the various statelegislatures the authority to determine how their state choosestheir Electors. The Indiana Legislature acted on this authoritywhen it enacted Ind.Code § 3–10–4–4, which allows voterballots to carry the name of the “nominees for Presidentand Vice President of the United States of a political party,”and that such votes for each nominee “is a vote cast orregistered for all of the candidates for presidential electorsof the party....” By virtue of its nine members of the Houseof Representatives and its two Senators, Indiana was entitled

to eleven electors in the November 4, 2008 election. 5

Both the Democratic and Republican party nominated elevenindividuals who were residents of the State of Indiana to serve

as their party's electors in the 2008 presidential election. 6

See Ind.Code § 3–8–4–2 (“[a] political party shall conducta state convention to ... nominate candidates for presidentialelectors and alternate electors ....”); see also Appellants'Appendix at 21–22. Neither President Barack Obama norSenator John McCain were nominated as electors for theirrespective parties in the 2008 election. Appellants' Appendixat 21–22.

“Not later than noon on the second Monday following anelection, each circuit court clerk shall prepare a certifiedstatement *683 ... of votes received by each candidate for:(1) federal office....” Ind.Code § 3–12–5–6(a). These certifiedstatements are sent to the election division of the Secretaryof State. Ind.Code § 3–12–5–6(b). Once the election resultshave been tabulated, “not later than noon of the last Tuesdayin November,” the Secretary of State “shall certify to thegovernor the candidate receiving the highest number of votesfor each office.” Ind.Code § 3–12–5–7. The Governor mustthen execute a certificate of ascertainment which officiallyappoints the winning presidential electors; a copy of thecertificate of ascertainment is then sent to the Archivist of the

United States. 7 3 U.S.C. § 6.

The presidential electors assemble “in the chamber of theIndiana house of representatives on the first Monday afterthe second Wednesday in December as provided by 3 U.S.C.7, or on another day fixed by the Congress of the UnitedStates, at 10 a.m. to elect the President and Vice–Presidentof the United States.” Ind.Code § 3–10–4–7. The electorsthen furnish copies of the “certificates so made by them

and the lists attached thereto” 8 to the Vice President, theIndiana Secretary of State, the Archivist of the United States,and “judge of the district in which the electors shall haveassembled.” 3 U.S.C. § 11. The votes of the electors of eachstate are then tallied by the Congress of the United States andthe new President is announced. 3 U.S.C. § 15.

The Plaintiffs have a different view of the electoral process inthe State of Indiana. In their complaint, the Plaintiffs allegethat:

By allowing the name of Barack Obamaupon the ballot for appointment of Electors,the Governor of the State of Indiana hasallowed Barack Obama to be appointed“Elector in Chief” in violation of ArticleII, Section 1, Clause 2's prohibition that noUnited States Senator currently holding thatoffice shall be appointed Elector for anyState.

Appellants' Appendix at 16. The Plaintiffs make a similarcharge against Senator John McCain's name appearing onthe ballot. In essence, Plaintiffs argue that because PresidentBarack Obama and Senator John McCain were United StatesSenators on November 4, 2008, they were constitutionallyineligible to be appointed as presidential elector (or, asPlaintiffs put it, “Elector in Chief”).

Plaintiffs do not state a meritorious claim. Notwithstandingthe fact that it is unclear what Plaintiffs are referring toby the phrase “Elector in Chief,” Plaintiffs' characterizationof the electoral process in the State of Indiana simply isnot consistent with the applicable laws. The fact that thenames “Barack Obama” and “John McCain” are the ones thatappeared on the ballot does not change the fact that they werein fact candidates for the presidency, not any of Indiana'selectors.

This distinction between a candidate and an elector is readilyascertainable throughout Title 3 of the Indiana Code. As anexample, we examine Ind.Code § 3–8–1–6, titled “Presidentor Vice President; electors.” That code section states:

(a) A candidate for the office of President or Vice Presidentof the United States must have the qualificationsprovided in Article 2, Section 1, clause 4 of theConstitution of the United States.

*684 (b) A candidate for the office of elector for Presidentand Vice President of the United States must have the


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qualifications provided in Article 2, Section 1, clause 2of the Constitution of the United States and Section 3of the Fourteenth Amendment to the Constitution of theUnited States.

Ind.Code § 3–8–1–6 (emphasis added). Thus, Ind.Code § 3–8–1–6 expresses a dichotomy between the presidential andvice-presidential nominees and the slate of electors appointedby each political party to serve in the Electoral College. Seealso Ind.Code § 3–10–4–1 (stating that the names of the“electors of President and Vice President of the United Statesmay not be placed on the ballot,” but that “[t]he names ofthe nominees for President and Vice President of the UnitedStates ... shall be placed ... on the ballot ...”).

Thus, we conclude that Plaintiffs' argument that the Governorhas allowed President Barack Obama and Senator JohnMcCain to be appointed “Elector in Chief” in violation ofArticle II, Section 1, Clause 2's prohibition against sittingSenators being appointed Elector for any State fails to state aclaim upon which relief can be granted.

B. Natural Born Citizen

[10] Second, the Plaintiffs argue that both President BarackObama and Senator John McCain are not “natural bornCitizens” as required for qualification to be President under

Article II, Section 1, Clause 4 9 of the U.S. Constitution,and that therefore because neither person was constitutionallyeligible to become President, “[t]he Governor ... should[have been] prohibited by order of [the trial court] ... fromissuing any certificate of ascertainment, or any other certifiedstatement, under the State Seal of the State of Indiana....”Appellants' Appendix at 13.

Before addressing the Plaintiffs' specific arguments, we thinkit helpful to point out the context in which this claimarises. Leading up to the 2008 Presidential Election and inthe ensuing months after, a number of lawsuits were filednationwide challenging both President Barack Obama and

Senator John McCain's 10 status as “natural born Citizens”under Article II of the U.S. Constitution. See, e.g., Berg v.Obama, 574 F.Supp.2d 509 (E.D.Pa.2008); *685 Hollanderv. McCain, 566 F.Supp.2d 63 (D.N.H.2008); Cohen v.Obama, No. 08–2150, 2008 WL 5191864 (D.D.C. Dec.11,2008), aff'd by 332 Fed.Appx. 640, 2009 WL 2870668(D.C.Cir. Sept.8, 2009); Wrotnowski v. Bysiewicz, 289 Conn.522, 958 A.2d 709 (2008). As to President Obama's status,the most common argument has been waged by membersof the so-called “birther” movement who suggest that the

President was not born in the United States; they supporttheir argument by pointing to “the President's alleged refusalto disclose publicly an ‘official birth certificate’ that issatisfactory to [the birthers].” Rhodes v. MacDonald, No.409–CV–106CDL, 2009 WL 2997605, at *1 (M.D.Ga. Sept.16, 2009), reconsideration denied by 2009 WL 3111834(M.D.Ga. Sept. 18, 2009).

The Plaintiffs in the instant case make a different legalargument based strictly on constitutional interpretation.Specifically, the crux of the Plaintiffs' argument is that“[c]ontrary to the thinking of most People on the subject,there's a very clear distinction between a ‘citizen of theUnited States' and a ‘natural born Citizen,’ and the differenceinvolves having [two] parents of U.S. citizenship, owing noforeign allegiance.” Appellants' Brief at 23. With regard toPresident Barack Obama, the Plaintiffs posit that becausehis father was a citizen of the United Kingdom, PresidentObama is constitutionally ineligible to assume the Office ofthe President.

The bases of the Plaintiffs' arguments come from suchsources as FactCheck.org, The Rocky Mountain News, aneighteenth century treatise by Emmerich de Vattel titled “TheLaw of Nations,” and various citations to nineteenth century

congressional debate. 11 For the reasons stated below, wehold that the Plaintiffs' arguments fail to state a claim uponwhich relief can be granted, and that therefore the trial courtdid not err in dismissing the Plaintiffs' complaint.

Section 1 of the Fourteenth Amendment to the U.S.Constitution governs who is a citizen of the United States. Itprovides that “[a]ll persons born or naturalized in the UnitedStates and subject to the jurisdiction thereof, are citizens ofthe United States....” U.S. CONST. amend XIV, § 1. ArticleII has a special requirement to assume the Presidency: thatthe person be a “natural born Citizen.” U.S. CONST. art. II,§ 1, cl. 4. The United States Supreme Court has read thesetwo provisions in tandem and held that “[t]hus new citizensmay be born or they may be created by naturalization.” Minorv. Happersett, 88 U.S. (21 Wall.) 162, 167, 22 L.Ed. 627(1874). In Minor, written only six years after the FourteenthAmendment was ratified, the Court observed that:

The Constitution does not, in words, saywho shall be natural-born citizens. Resortmust be had elsewhere to ascertain that.At common-law, with the nomenclatureof which the framers of the Constitutionwere familiar, it was never doubted










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that all children born in a country ofparents who were its citizens becamethemselves, upon their birth, citizensalso. These were natives, or natural-borncitizens, as distinguished from aliens orforeigners. Some authorities go further andinclude as citizens children born withinthe jurisdiction without reference to thecitizenship of their parents. As to this classthere have been doubts, but never as to thefirst. For the purposes of this case it is notnecessary to solve these doubts.

*686 Id. at 167–168, 22 L.Ed. 627. Thus, the Court left openthe issue of whether a person who is born within the United

States of alien parents is considered a natural born citizen. 12

Then, in U.S. v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct.456, 42 L.Ed. 890 (1898), the United States Supreme Courtconfronted the question of “whether a child born in the UnitedStates, of parents of Chinese descent, who at the time of hisbirth are subject to the emperor of China ... becomes at thetime of his birth a citizen of the United States, by virtue ofthe first clause of the fourteenth amendment....” 169 U.S. at653, 18 S.Ct. at 458. We find this case instructive. The Courtin Wong Kim Ark reaffirmed Minor in that the meaning ofthe words “citizen of the United States” and “natural-borncitizen of the United States” “must be interpreted in the lightof the common law, the principles and history of which werefamiliarly known to the framers of the constitution.” Id. at654, 18 S.Ct. at 459. They noted that “[t]he interpretation ofthe constitution of the United States is necessarily influencedby the fact that its provisions are framed in the languageof the English common law, and are to be read in the lightof its history.” Id. at 655, 18 S.Ct. at 459 (quoting Smith v.Alabama, 124 U.S. 465, 478, 8 S.Ct. 564, 569, 31 L.Ed. 508(1888)). The Wong Kim Ark Court explained:

The fundamental principle of the common law with regardto English nationality was birth within the allegiance-also called ‘ligealty,’ ‘obedience,’ ‘faith,’ or ‘power'-ofthe king. The principle embraced all persons born withinthe king's allegiance, and subject to his protection. Suchallegiance and protection were mutual,-as expressed inthe maxim, ‘Protectio trahit subjectionem, et subjectioprotectionem,'-and were not restricted to natural-bornsubjects and naturalized subjects, or to those who had takenan oath of allegiance; but were predicable of aliens inamity, so long as they were within the kingdom. Children,born in England, of such aliens, were therefore natural-

born subjects. But the children, born within the realm, offoreign ambassadors, or the children of alien enemies, bornduring and within their hostile occupation of part of theking's dominions, were not natural-born subjects, becausenot born within the allegiance, the obedience, or the power,or, as would be said at this day, within the jurisdiction, ofthe king.

This fundamental principle, with these qualifications orexplanations of it, was clearly, though quaintly, stated inthe leading case known as ‘Calvin's Case,’ or the ‘Caseof the Postnati,’ decided in 1608, after a hearing in theexchequer chamber before the lord chancellor and all thejudges of England, and reported by Lord Coke and byLord Ellesmere. Calvin's Case, 7 Coke, 1, 4b–6a, 18a, 18b;Ellesmere, Postnati, 62–64; s. c. 2 How. St. Tr. 559, 607,613–617, 639, 640, 659, 679.

The English authorities ever since are to the like effect. Co.Litt. 8a, 128b; Lord Hale, in Harg. Law Tracts, 210, andin 1 Hale, P.C. 61, 62; 1 B1. Comm. 366, 369, 370, 374; 4B1. Comm. 74, 92; Lord Kenyon, in Doe v. Jones, 4 TermR. 300, 308; Cockb. Nat. 7; Dicey, Confl. Laws, pp. 173–177, 741.

*687 * * * * * *

Lord Chief Justice Cockburn ... said: ‘By the commonlaw of England, every person born within the dominionsof the crown, no matter whether of English or of foreignparents, and, in the latter case, whether the parents weresettled, or merely temporarily sojourning, in the country,was an English subject, save only the children of foreignambassadors (who were excepted because their fatherscarried their own nationality with them), or a child born toa foreigner during the hostile occupation of any part of theterritories of England. No effect appears to have been givento descent as a source of nationality.’ Cockb. Nat. 7.

Mr. Dicey, in his careful and thoughtful Digest of theLaw of England with Reference to the Conflict of Laws,published in 1896, states the following propositions,his principal rules being printed below in italics:“British subject' means any person who owes permanentallegiance to the crown. ‘Permanent’ allegiance is usedto distinguish the allegiance of a British subject fromthe allegiance of an alien, who, because he is within theBritish dominions, owes ‘temporary’ allegiance to thecrown. ‘Natural-born British subject’ means a Britishsubject who has become a British subject at the moment
















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of his birth.' ‘Subject to the exceptions hereinaftermentioned, any person who (whatever the nationalityof his parents) is born within the British dominions isa natural-born British subject. This rule contains theleading principle of English law on the subject of Britishnationality.’ The exceptions afterwards mentioned byMr. Dicey are only these two: ‘(1) Any person who (hisfather being an alien enemy) is born in a part of theBritish dominions, which at the time of such person'sbirth is in hostile occupation, is an alien.’ ‘(2) Anyperson whose father (being an alien) is at the time of suchperson's birth an ambassador or other diplomatic agentaccredited to the crown by the sovereign of a foreignstate is (though born within the British dominions) analien.’ And he adds: ‘The exceptional and unimportantinstances in which birth within the British dominionsdoes not of itself confer British nationality are due to thefact that, though at common law nationality or allegiancein substance depended on the place of a person's birth,it in theory at least depended, not upon the localityof a man's birth, but upon his being born within thejurisdiction and allegiance of the king of England; and itmight occasionally happen that a person was born withinthe dominions without being born within the allegiance,or, in other words, under the protection and control ofthe crown.’ Dicey, Confl. Laws, pp. 173–177, 741.

It thus clearly appears that by the law of England for thelast three centuries, beginning before the settlement ofthis country, and continuing to the present day, aliens,while residing in the dominions possessed by the crownof England, were within the allegiance, the obedience,the faith or loyalty, the protection, the power, and thejurisdiction of the English sovereign; and therefore everychild born in England of alien parents was a natural-born subject, unless the child of an ambassador or otherdiplomatic agent of a foreign state, or of an alien enemyin hostile occupation of the place where the child wasborn.

III. The same rule was in force in all the English coloniesupon this continent down to the time of the Declarationof Independence, and in the United States afterwards,and continued to prevail under the constitution as

originally established. *688 13

Id. at 655–658, 18 S.Ct. at 459–460.

Also, as quoted in Wong Kim Ark, Justice Joseph Story oncedeclared in Inglis v. Trustees of Sailors' Snug Harbor, 28 U.S.

(3 Pet.) 99, 7 L.Ed. 617 (1830), that “Nothing is better settledat the common law than the doctrine that the children, evenof aliens, born in a country, while the parents are residentthere under the protection of the government, and owing atemporary allegiance thereto, are subjects by birth.” WongKim Ark, 169 U.S. at 660, 18 S.Ct. at 461 (quoting Inglis, 28U.S. (3 Pet.) at 164 (Story, J., concurring)). The Court alsocited Justice Curtis's dissent in Dred Scott v. Sandford, 60U.S. (19 How.) 393, 15 L.Ed. 691 (1856):

The first section of the second articleof the constitution uses the language,‘a natural-born citizen.’ It thus assumesthat citizenship may be acquired bybirth. Undoubtedly, this language of theconstitution was used in reference to thatprinciple of public law, well understood inthis country at the time of the adoption ofthe constitution, which referred citizenshipto the place of birth.

Wong Kim Ark, 169 U.S. at 662, 18 S.Ct. at 462 (quoting DredScott, 60 U.S. (19 How.) at 576 (Curtis, J., dissenting)).

The Court in Wong Kim Ark also cited authority which notesthat:

All persons born in the allegiance of theking are natural-born subjects, and allpersons born in the allegiance of the UnitedStates are natural-born citizens. Birth andallegiance go together. Such is the rule ofthe common law, and it is the common lawof this country, as well as of England. Wefind no warrant for the opinion that thisgreat principle of the common law has everbeen changed in the United States. It hasalways obtained here with the same vigor,and subject only to the same exceptions,since as before the Revolution.

Id. at 662–663, 18 S.Ct. at 462 (quotations and citationsomitted). The Court held that Mr. Wong Kim Ark was a

citizen of the United States “at the time of his birth.” 14 Id.at 705, 18 S.Ct. at 478.

Based upon the language of Article II, Section 1, Clause 4and the guidance provided by Wong Kim Ark, we concludethat persons born within the borders of the United States are“natural born Citizens” for Article II, Section 1 purposes,regardless of the citizenship of their parents. Just as a person





















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“born within the British dominions [was] a natural-bornBritish subject” at the time of the framing of the U.S.Constitution, so too were those “born in the allegiance of the

United States [ ] natural-born citizens.” 15

*689 The Plaintiffs do not mention the above UnitedStates Supreme Court authority in their complaint or brief;they primarily rely instead on an eighteenth century treatiseand quotations of Members of Congress made during thenineteenth century. To the extent that these authoritiesconflict with the United States Supreme Court's interpretationof what it means to be a natural born citizen, we believethat the Plaintiffs' arguments fall under the category of“conclusory, non-factual assertions or legal conclusions” thatwe need not accept as true when reviewing the grant of amotion to dismiss for failure to state a claim. Irish, 864 N.E.2dat 1120. Thus, we cannot say that the trial court erred when it

dismissed the Plaintiffs' case. 16 See generally McCalment v.

Eli Lilly & Co., 860 N.E.2d 884 (Ind.Ct.App.2007) (holdingthat the plaintiffs' arguments had been sufficiently addressedby Indiana Supreme Court precedent and therefore the trialcourt did not err when it granted the defendant's motion todismiss for failure to state a claim upon which relief canbe granted); see also, e.g., Diaz–Salazar v. I.N.S., 700 F.2d1156, 1160 (7th Cir.1983) (noting in its recitation of the factsthat despite the fact father was not a citizen of the UnitedStates, he had children who were “natural-born citizens of theUnited States”), cert. denied 462 U.S. 1132, 103 S.Ct. 3112,77 L.Ed.2d 1367 (1983).

For the foregoing reasons, we affirm the trial court's grant ofthe Governor's motion to dismiss.

Affirmed.

CRONE, J., and MAY, J., concur.

Footnotes

1 We note that pro se litigants, such as Plaintiffs, “are held to the same standard as licensed lawyers.” Novatny v. Novatny, 872 N.E.2d

673, 677 n. 3 (Ind.Ct.App.2007). This court will not “indulge in any benevolent presumptions on [their] behalf, or waive any rule for

the orderly and proper conduct of [their] appeal.” Foley v. Mannor, 844 N.E.2d 494, 496 n. 1 (Ind.Ct.App.2006).

Thus, we will attempt to address the issues raised by Plaintiffs. To the extent that Plaintiffs raise additional issues, the Plaintiffs

fail to develop a cogent argument and cite to authority. Consequently, the arguments are waived. See, e.g., Loomis v. Ameritech,

764 N.E.2d 658, 668 (Ind.Ct.App.2002) (holding argument waived for failure to cite authority or provide cogent argument), reh'g

denied, trans. denied.

2 The trial court also granted the Governor's motion to dismiss on the bases of mootness under Ind. Trial Rule 12(B)(1) and the equitable

doctrine of laches. Because we find that Plaintiffs failed to state a claim upon which relief can be granted under T.R. 12(B)(6), we

need not address the trial court's alternative grounds for dismissal.

3 The Complaint also named the Democratic National Committee, Barack Obama, the Republican National Committee, and John

McCain as defendants. The Plaintiffs state, without citation to the record, that “only the Governor of the State of Indiana accepted

Service of Summons.” Appellants' Brief at 3. We note that the Plaintiffs' case summary lists only the Governor as appellee, the

Plaintiffs' notice of appeal lists only the Governor as defendant, and the Plaintiffs' briefs contain certificates of service indicating that

the briefs were served upon only the Governor.

4 In his brief, the Governor argues that the motion to dismiss included an affidavit, and therefore because “matters outside the pleadings

[were] presented to the court on a 12(B)(6) motion, the motion shall be treated as one for summary judgment under T.R. 56. T.R.

12(B).” Appellee's Brief at 6. While true that the general rule is that when a motion to dismiss for failure to state a claim under T.R.

12(B)(6) is supplemented with materials outside the pleadings it should be treated as a motion for summary judgment, we note that:

[W]hen examination of the face of a complaint alone reveals that the plaintiff will not be entitled to relief under any set of

circumstances, consideration of external materials aimed at substantiating or contradicting the complaint's factual allegations is

irrelevant, because a fortiori the complaint fails to state a claim upon which relief can be granted under any factual scenario. In

that instance, the trial court should exclude material outside the pleadings which are submitted with a 12(B)(6) motion, rather

than convert the motion into one for summary judgment, because the external material are irrelevant to the motion.

Dixon v. Siwy, 661 N.E.2d 600, 603 (Ind.Ct.App.1996). In this case, there is no evidence that the trial court considered the

material contained in the affidavit prepared by J. Bradley King, Co–Director for the Indiana Election Division, which contains nine

paragraphs explaining the vote-tallying process actually carried out following the November 4, 2008 election. The affidavit was

not relevant to the trial court's order granting the Governor's motion to dismiss. Thus, it was proper for the trial court to exclude

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judgment. See Trail v. Boys and Girls Clubs of Northwest Indiana, 845 N.E.2d 130, 134, 140 (Ind.2006) (affirming the trial court's

grant of a motion to dismiss under Rule 12(B)(6) even after the parties “filed several affidavits, exhibits, and briefs”).

5 The date of the election was chosen pursuant to Ind.Code § 3–10–2–1, which states that “[a] general election shall be held on the

first Tuesday after the first Monday in November in each even-numbered year....”

6 The Democratic Party's candidates for Indiana electors were: (1) Jeffrey L. Chidester, of Valparaiso; (2) Owen “Butch” Morgan,

of South Bend; (3) Michelle Boxell, of Warsaw; (4) Charlotte Martin, of Indianapolis; (5) Jerry J. Lux, of Shelbyville; (6)

Connie Southworth, of Salamonia; (7) Alan P. Hogan, of Indianapolis; (8) Myrna E. Brown, of Vincennes; (9) Clarence Benjamin

Leatherbury, of Salem; (10) Daniel J. Parker, of Indianapolis; and (11) Cordelia Lewis Burks, of Indianapolis. The Republican Party's

candidates for Indiana electors were: (1) Chuck Williams, of Valparaiso; (2) Edward Smith, of Galveston; (3) Barbara Krisher, of Fort

Wayne; (4) Daniel Bortner, of Bedford; (5) Virginia Marner, of Kokomo; (6) Susan Lightle, of Greenfield; (7) Pearl Swanigan, of

Indianapolis; (8) William Springer, of Sullivan; (9) David Buskill, of Jeffersonville; (10) Samual Wayne Goodman, of Greenwood;

and (11) Juana Watson, of Columbus. Appellants' Appendix at 21–22; see also 2008 Presidential Elector Candidates, available at

http://www.in. gov/sos/elections/files/2008_Presidential_Elector_Candidate_List.pdf (last visited Oct. 8, 2009).

7 The Archivist of the United States transmits copies “to the two Houses of Congress ... of each and every such certificate so received....”

3 U.S.C. § 6.

8 The electors prepare the certificates in accordance with 3 U.S.C. §§ 6, 9–11.

9 The Plaintiffs cite the “natural born Citizen” clause as Article II, Section 1, Clause 5 of the U.S. Constitution, but it is properly cited

as Article II, Section 1, Clause 4. See also Ind.Code § 3–8–1–6.

10 The United States Senate passed a resolution on April 30, 2008 which explicitly recognized Senator John McCain as a natural born

citizen. S.J. Res. 511, 110th Cong. (2008). Also, the supposed authority cited by the Plaintiffs to support their claim as to the meaning

of Article II, Section 1, Clause 4 of the U.S. Constitution does not support the argument that John McCain is not a natural born

citizen. Plaintiffs state in their brief that the difference between being a “citizen of the United States” and a “natural born Citizen”

“involves having [two] parents of U.S. Citizenship, owing no foreign allegiance.” Appellant's Brief at 23. The Plaintiffs then concede

that “John McCain ... qualifie[s] as a ‘citizen of the United States,’ by being born of [two] parents who were in turn ‘citizens of the

United States,’ and owed no foreign allegiance....” Id. Their brief continues that “John McCain was born ‘subject to the jurisdiction’

of the United States, but he was not born in one of the 50 States of the Union under Article IV of the Constitution, and thus ... was

not a ‘natural born Citizen....’ ” Id. at 23–24. Plaintiffs do not cite to any authority or develop any cogent legal argument for the

proposition that a person must actually be born within one of the fifty States in order to qualify as a natural born citizen, and we

therefore do not address Plaintiffs argument as it relates to Senator McCain. See Loomis, 764 N.E.2d at 668.

11 Plaintiffs do not provide pinpoint citations to the congressional debate quotations to which they cite.

12 Note that the Court in Minor contemplates only scenarios where both parents are either citizens or aliens, rather in the case of President

Obama, whose mother was a U.S. citizen and father was a citizen of the United Kingdom.

13 According to Westlaw, Wong Kim Ark has been cited to in over 1,000 cases.

14 We note the fact that the Court in Wong Kim Ark did not actually pronounce the plaintiff a “natural born Citizen” using the

Constitution's Article II language is immaterial. For all but forty-four people in our nation's history (the forty-four Presidents), the

dichotomy between who is a natural born citizen and who is a naturalized citizen under the Fourteenth Amendment is irrelevant. The

issue addressed in Wong Kim Ark was whether Mr. Wong Kim Ark was a citizen of the United States on the basis that he was born

in the United States. Wong Kim Ark, 169 U.S. at 705, 18 S.Ct. at 478.

15 We reiterate that we do not address the question of natural born citizen status for persons who became United States citizens at birth

by virtue of being born of United States citizen parents, despite the fact that they were born abroad. That question was not properly

presented to this court. Without addressing the question, however, we note that nothing in our opinion today should be understood

to hold that being born within the fifty United States is the only way one can receive natural born citizen status.

16 We note that President Obama is not the first U.S. President born of parents of differing citizenship. Chester A. Arthur, the twenty-

first U.S. President, was born of a mother who was a United States citizen and a father who was an Irish citizen. See THOMAS

C. REEVES, GENTLEMAN BOSS, THE LIFE OF CHESTER ALAN ARTHUR 3–4 (1975). During the election of 1880, there

arose a rumor “that [Arthur] had been born in Canada, rather than in Vermont as he claimed, and was thus constitutionally ineligible

to become the Chief Executive.” Id. at 3. Although President Arthur's status as a natural born citizen was challenged in the 1880

Presidential Election on the grounds that he was born in Canada rather than Vermont, the argument was not made that because

Arthur's father was an Irish citizen he was constitutionally ineligible to be President. See generally id.

End of Document © 2012 Thomson Reuters. No claim to original U.S. Government Works.



















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TAB C


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FILED OSAI I

OFFICE OF STATE ADMINISTRATIVE HEARINGS FEB 0 3 2012 STATE OF GEORGIA

DAVID FARRAR, LEAH LAX, CODY JUDY, :

THOMAS MALAREN, LAURIE ROTH,

Plaintiffs,

v.

BARACK OBAMA,

Defendant.

Valerie Rig Levi Assistant • Docket Number: OSAH-SECSTATE-CE- . • 1215136-60-MALIHI

Counsel for Plaintiffs: Orly Taitz

Counsel for Defendant: Michael Jablonski

DAVID P. WELDEN,

Plaintiff, : :

v. :

BARACK OBAMA, :

Defendant.

Docket Number: OSAH-SECSTATE-CE-1215137-60-MALIEH

Counsel for Plaintiff: Van R. Irion


CARL SWENSSON,

Plaintiff, : Docket Number: OSAH-SECSTATE-CE- : 1216218-60-MALEHI

v. Counsel for Plaintiff: J. Mark Hatfield

BARACK OBAMA, Counsel for Defendant: Michael Jablonski

Defendant.

KEVIN RICHARD POWELL,

Plaintiff, : :

v.

BARACK OBAMA,

D :

efendant.

Docket Number: OSAH-SECSTATE-CE-1216823-60-MALIHI

Counsel for Plaintiff: J. Mark Hatfield



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DECISION'

Plaintiffs allege that Defendant President Barack Obama does not meet Georgia's

eligibility requirements for candidacy in Georgia's 2012 presidential primary election.

Georgia law mandates that candidates meet constitutional and statutory requirements for

the office that they seek. O.C.G.A. § 21-2-5(a). Mr. Obama is a candidate for federal

office who has been certified by the state executive committee of a political party, and

therefore must, under Georgia Code Section 21-2-5, meet the constitutional and statutory

qualifications for holding the Office of the President of the United States. Id. The United

States Constitution requires that a President be a "natural born [c]itizen." U.S. Const. art.

II, § 1, cl. 5.

As required by Georgia Law, Secretary of State Brian Kemp referred Plaintiffs'

challenges to this Court for a hearing. O.C.G.A. § 21-2-5(b). A hearing was held on

January 26, 2012. The record closed on February 1, 2012. Plaintiffs Farrar, Lax, Judy,

Malaren, and Roth and their counsel Orly Taitz, Plaintiffs Carl Swensson and Kevin

Richard Powell and their counsel J. Mark Hatfield, and Plaintiff David P. Welden and his

counsel Van R. Trion, all appeared and answered the call of the case. However, neither

Defendant nor his counsel, Michael Jablonski, appeared or answered. Ordinarily, the

Court would enter a default order against a party that fails to participate in any stage of a

proceeding. Ga. Comp. R. & Regs. 616-1-2-.30(1) and (5). Nonetheless, despite the

1 This Decision has been consolidated to include the four challenges to President Obama's candidacy filed by Plaintiffs David Farrar, et al., David P. Welden, Carl Swensson, and Kevin Richard Powell. Section I of this Decision applies only to the case presented by Ms. Taitz on behalf of Mr. Farrar and his co-plaintiffs, Leah Lax, Cody Judy, Thomas Malaren, and Laurie Roth, and does not pertain, in any way, to the cases of Mr. Welden, Mr. Swensson, and Mr. Powell. Section II applies to all Plaintiffs.

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Defendant's failure to appear, Plaintiffs asked this Court to decide the case on the merits

of their arguments and evidence. The Court granted Plaintiffs' request.

By deciding this matter on the merits, the Court in no way condones the conduct

or legal scholarship of Defendant's attorney, Mr. Jablonski. This Decision is entirely

based on the law, as well as the evidence and legal arguments presented at the hearing.

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I. Evidentiary Arguments of Plaintiffs Farrar, et al.

Plaintiffs Farrar, Lax, Judy, Malaren, and Roth contend that President Barack

Obama is not a natural born citizen. To support this contention, Plaintiffs assert that Mr.

Obama maintains a fraudulently obtained social security number, a Hawaiian birth

certificate that is a computer-generated forgery, and that he does not otherwise possess

valid U.S. identification papers. Further, Plaintiffs submit that Mr. Obama has previously

held Indonesian citizenship, and he did not use his legal name on his notice of candidacy,

which is either Barry Soetoro or Barack Obama Soebarkah. (Pl.s' Am. Compl. 3.)

At the hearing, Plaintiffs presented the testimony of eight witnesses 2 and seven

exhibits in support of their position. (Exs. P-1 through P-7.) When considering the

testimony and exhibits, this Court applies the same rules of evidence that apply to civil

nonjury cases in superior court. Ga. Comp. R. & Regs. 616-1-2-.18(1)—(9). The weight

to be given to any evidence shall be determined by the Court based upon its reliability

and probative value. Ga. Comp. R. & Regs. 616-1-2-.18(10).

The Court finds the testimony of the witnesses, as well as the exhibits tendered, to

be of little, if any, probative value, and thus wholly insufficient to support Plaintiffs'

allegations. 3 Ms. Taitz attempted to solicit expert testimony from several of the

witnesses without qualifying or tendering the witnesses as experts. See Stephens v. State,

219 Ga. App. 881 (1996) (the unqualified testimony of the witness was not competent

evidence). For example, two of Plaintiffs' witnesses testified that Mr. Obama's birth

2 Originally, Ms. Taitz indicated to the Court that she would offer the testimony of seven witnesses. However, during her closing argument, Ms. Taitz requested to testify. Ms. Taitz was sworn and began her testimony, but shortly thereafter, the Court requested that Ms. Tatiz step-down and submit any further testimony in writing. 3 The credibility of witnesses is within the sole discretion of the trier of fact. In non-jury cases that discretion lies with the judge. See Mustang Transp., Inc. v. W. W. Lowe & Sons, Inc., 123 Ga. App. 350, 352 (1971).

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certificate was forged, but neither witness was properly qualified or tendered as an expert

in birth records, forged documents or document manipulation. Another witness testified

that she has concluded that the social security number Mr. Obama uses is fraudulent;

however, her investigatory methods and her sources of information were not properly

presented, and she was never qualified or tendered as an expert in social security fraud, or

fraud investigations in general. Accordingly, the Court cannot make an objective

threshold determination of these witnesses' testimony without adequate knowledge of

their qualifications. See Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872 (1957) (for

the testimony of an expert witness to be received, his or her qualifications as such must

be first proved).

None of the testifying witnesses provided persuasive testimony. Moreover, the

Court finds that none of the written submissions tendered by Plaintiffs have probative

value. Given the unsatisfactory evidence presented by the Plaintiffs, the Court concludes

that Plaintiffs' claims are not persuasive.

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II. Application of the "Natural Born Citizen" Requirement

Plaintiffs allege that President Barack Obama is not a natural born citizen of the

United States and, therefore, is not eligible to run in Georgia's presidential primary

election. As indicated supra, the United States Constitution states that "[n]o person

except a natural born Citizen . . . shall be eligible for the Office of the President . . . 2' 4

U.S. Const. art. II, § 1, cl. 5.

For the purpose of this section's analysis, the following facts are considered: 1)

Mr. Obama was born in the United States; 2) Mr. Obama's mother was a citizen of the

United States at the time of his birth; and 3) Mr. Obama's father was never a United

States citizen. Plaintiffs contend that, because his father was not a U.S. citizen at the time

of his birth, Mr. Obama is constitutionally ineligible for the Office of the President of the

United States. The Court does not agree.

In 2009, the Indiana Court of Appeals ("Indiana Court") addressed facts and

issues similar to those before this Court. Arkeny v. Governor, 916 N.E.2d 678 (Ind. Ct.

App. 2009). In Arkeny, the plaintiffs sought to prevent certification of Mr. Obama as an

eligible candidate for president because he is not a natural born citizen. Id. at 681. The

plaintiffs argued, as the Plaintiffs argue before this Court, that "there's a very clear

distinction between a 'citizen of the United States' and a 'natural born Citizen,' and the

difference involves having [two] parents of U.S. citizenship, owing no foreign

allegiance." Id. at 685. The Indiana Court rejected the argument that Mr. Obama was

4 The definition of this clause has been the source of much debate. See, e.g., Gordon, Who Can Be President of the United States: The Unresolved Enigma, 28 Md. L. Rev. 1 (1968); Jill A. Pryor, Note, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881 (1988); Christina S. Lohman, Presidential Eligibility: The Meaning of the Natural-Born Citizen Clause, 36 Gonz. L. Rev. 349 (2000); William T. Han, Beyond Presidential Eligibility: The Natural Born Citizen Clause as a Source of Birthright Citizenship, 58 Drake L. Rev. 457 (2010).

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ineligible, stating that children born within the United States are natural born citizens,

regardless of the citizenship of their parents. Id. at 688. This Court finds the decision

and analysis of Arkeny persuasive.

The Indiana Court began its analysis by attempting to ascertain the definition of

"natural born citizen" because the Constitution does not define the term. Id. at 685-86;

See Minor v. Happersett, 88 U.S. 162, 167 (1875) ("The Constitution does not, in words,

say who shall be natural born citizens. Resort must be had elsewhere to ascertain that");

see also United States v. Wong Kim Ark, 169 U.S. 649 (1898) (noting that the only

mention of the term "natural born citizen" in the Constitution is in Article II, and the term

is not defined in the Constitution).

The Indiana Court first explained that the U.S. Supreme Court has read the

Fourteenth Amendment and Article II (natural born citizen provision) in tandem and held

that "new citizens may be born or they may be created by naturalization." Id. at 685

(citing Minor, 88 U.S. at 167); See U.S. Const. amend. XIV, § 1. ("All persons born or

naturalized in the United States and subject to the jurisdiction thereof, are citizens of the

United States . . . ."). In Minor, the Court observed 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.

Id. at 167-68. Plaintiffs ask this Court to read the Supreme Court's decision in Minor as

defining natural born citizens as only "children born in a country of parents who were its

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citizens." 88 U.S. at 167. However, the Indiana Court explains that Minor did not define

the term natural born citizen. In deciding whether a woman was eligible to vote, the

Minor Court merely concluded that children born in a country of parents who were its

citizens would qualify as natural born, and this Court agrees. The Minor Court left open

the issue of whether a child born within the United States of alien parent(s) is a natural

born citizen.

Next, the Indiana Court looked to United States v. Wong Kim Ark, in which the

Supreme Court analyzed the meaning of the words "citizen of the United States" in the

Fourteenth Amendment and "natural born citizen of the United States" in Article II to

determine whether a child born in the United States to parents who, at the time of the

child's birth, were subjects of China "becomes at the time of his birth a citizen of the

United States, by virtue of the first clause of the fourteenth amendment . . ." Id. at 686

(citing Wong Kim Ark, 169 U.S. at 653). The Indiana Court determined that the two

provisions "must be interpreted in the light of the common law, the principles and history

of which were familiarly known to the framers of the constitution." Id. (citing Wong Kim

Ark, 169 U.S. at 654). The Indiana Court agreed that "[t]he interpretation of the

constitution of the United States is necessarily influenced by the fact that its provisions

are framed in the language of the English common law, and are to be read in the light of

its history." Id. (citing Wong Kim Ark, 169 U.S. at 655) (internal citation omitted). The

Wong Kim Ark Court extensively examined the common law of England in its decision

and concluded that Wong Kim Ark, who was born in the United States to alien parents,

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became a citizen of the United States at the time of his birth. 5 Wong Kim Ark, 169 U.S. at

705.

5 The Wong Kim Ark Court explained:

The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith" or "power," of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual . . . and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction of the King.

169 U.S. at 655.

It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction, of the English Sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign State, or of an alien enemy in hostile occupation of the place where the child was born.

Id. at 658. Further:

Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.

Id. at 660 (quoting Inglis v. Trustees of Sailors' Snug Harbor, 28 U.S. (3 Pet.) 99, 164 (1830) (Story, J., concurring)). And:

The first section of the second article of the constitution uses the language, 'a natural-born citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the constitution, which referred citizenship to the place of birth.

Id. at 662 (quoting Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 576 (1856) (Curtis, J., dissenting)). Finally:

All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.

Id. at 662 -63 (quoting United States v. Rhodes, (1866) (Mr. Justice Swayne)).

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Relying on the language of the Constitution and the historical reviews and

analyses of Minor and Wong Kim Ark, the Indiana Court concluded that

persons born within the borders of the United States are "natural born citizens" for Article II, Section 1 purposes, regardless of the citizenship of their parents. Just as a person "born within the British dominions [was] a natural-born British subject" at the time of the framing of the U.S. Constitution, so too were those "born in the allegiance of the United States [] natural-born citizens."

916 N.E.2d at 688. The Indiana Court determined that a person qualifies as a natural born

citizen if he was born in the United States because he became a United States citizen at

birth. 6

For the purposes of this analysis, this Court considered that President Barack

Obama was born in the United States. Therefore, as discussed in Arkeny, he became a

citizen at birth and is a natural born citizen. Accordingly,

CONCLUSION

President Barack Obama is eligible as a candidate for the presidential primary

election under O.C.G.A. § 21-2-5(b).

SO ORDERED, February d, 2012.

MICHAEL M. MALIHI, Judge

6 This Court recognizes that the Wong Kim Ark case was not deciding the meaning of "natural born citizen" for the purposes of determining presidential qualifications; however, this Court finds the Indiana Court's analysis and reliance on these cases to be persuasive.

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TAB E


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New Jersey Is An Equal Opportunity Employer

State of New JerseyOFFICE OF ADMINISTRATIVE LAW

INITIAL DECISION

OAL DKT. NO. STE 04534-12

AGENCY DKT. N/A

NICHOLAS E. PURPURA

AND THEODORE T. MORAN,

Petitioners,

v.

BARACK OBAMA,

Respondent.

___________________________

Mario Apuzzo, Esq., for petitioners

Alexandra Hill, Esq., for respondent (Genova, Burns, Giantomasi & Webster,

attorneys)

AND

PATRICK GALASSO, OAL DKT. NO. STE 04588-12

Petitioner, AGENCY DKT. N/A

v.

BARACK OBAMA,

Respondent.

___________________________

Patrick Galasso, petitioner, filed pro se

Alexandra Hill, Esq., for respondent (Genova, Burns, Giantomasi & Webster,

attorneys)


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m OAL DKT. NOS. STE 4534-12 AND STE 4588-12

- 2 -

Record Closed: April 10, 2012 Decided: April 10, 2012

BEFORE JEFF S. MASIN, ALJ:

Petitioners in these matters challenge the validity of the nominating petition filed

on behalf of President Barack Obama, a candidate for election to the position of

President of the United States. The challenges were filed on April 5 (Purpura and

Moran) and April 9 (Galasso). A hearing was held before this judge on April 10, 2012.

Messrs. Purpura and Moran appeared with counsel. Mr. Galasso did not appear and

was not represented at the hearing. As such, his objection is subject to dismissal for

failure to prosecute, but since the issues he raised in his one-page petition are

essentially those raised by the other objectors, the matter will be decided on the merits.

The petitioners present several grounds for their contention that Mr. Obama

cannot legally stand as a candidate for the Democratic nomination in the pending

primary. As identified in the petition and as more directly defined at the hearing, the

objections are that

1. Mr. Obama has not proven that he meets the Constitutional

requirements for the Office of President. More specifically, as he must

be a “natural-born Citizen” and as the Secretary of State has an

obligation to assure that he meets that qualification, he has not

provided her with proof as to the details of his birth. He has not filed a

birth certificate to establish his purported birth in Hawaii. Indeed, there

are uncertainties as to his actual identity. He has not proven that he

was actually born in the United States and as such, that he is a

“natural born” citizen, as he is required to be in order to serve as

President pursuant to Article II, Section 1, Clause 4 of the United

States Constitution.

2. Even if he was actually born in the United States, he is not a

“natural born Citizen” because his father was not a citizen.


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- 3 -

The petitioners each testified as to the reason for their having filed an objection

to Mr. Obama’s nominating petition. In essence, they are concerned that a person

whom they believe to be ineligible to be President would be elected to the position and

wield the enormous power, influence and authority of the Presidency, with some threat

to their security and to the democratic institutions of this country. Their standing to file

the objection was not challenged.

In regard to the first issue, it is undisputed that Mr. Obama has not presented the

Secretary of State with any form of birth certificate in connection with the nominating

petitions, and his counsel in this hearing agreed that she was offering no such

document. As such, while the petitioners have noted in their brief their beliefs as to the

possibly illicit nature of the long-form birth certificate released to the public via the

internet, counsel for the petitioners agreed that here the relevant objection is not to the

validity of the document, for it is not before the Secretary. The objection is instead that

in regard to the need to prove qualification for the Presidency, and that Obama is

“natural-born”, the failure to produce any proof is itself fatal to his nomination. And in

that regard, the failure to even proffer to the Secretary a birth certificate is legally

conclusive of the lack of qualification to stand for the Office. As such, while the

petitioners were prepared to produce a witness, purportedly an expert, to contend that

the long-form certificate, as displayed on the internet, was a forgery, after extensive

colloquy, it was determined that that issue is not relevant to the petitioners’ objection

herein. It would only be so if the certificate were produced in order to meet a specific

requirement of the law, and in that instance, its validity could be challenged. It has not

been offered.1

The Constitution of the United States, Article II, Section 1, Clause 4, provides the

following qualifications for one to serve as President of the United States: (1) shall have

attained the age of 35 years; (2) a natural born citizen of the United States; (3) a United

States resident for at least fourteen years. The nomination of any person to any public

office may be challenged on the ground that the incumbent is not eligible for the office

at the time of the election. N.J.S.A. 19:29-1. N.J.S.A. 19:25-3 provides

1I make no determination as to whether the gentlemen who was identified as the expert witness would

have qualified as such, or on the validity of any alleged expert assessment of the original birth certificatebased upon a view of the document on the internet.


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- 4 -

Not less than 1,000 voters of any political party may file apetition with the Secretary of State on or before the 64th daybefore a primary election in any year in which a President ofthe United States is to be chosen, requesting that the nameof the person indorsed therein as a candidate of such partyfor the office of President of the United States shall beprinted upon the official primary ballot of that party for thethen ensuing election for delegates and alternates to thenational convention of such party.

The petition shall be prepared and filed in the form andmanner herein required for the indorsement of candidates tobe voted for at the primary election for the general election,except that the candidate shall not be permitted to have adesignation or slogan following his name, and that it shallnot be necessary to have the consent of such candidate forPresident indorsed on the petition.

It is thus the case that a nominating petition endorsing a particular person for the

Presidency can be filed without the consent of the person indorsed. That being the

case, it appears that at least at the time that the petition is filed with the Secretary of

State, there is no obligation upon the person indorsed to prove his or her qualification

for the office. This lack of a need for consent contrasts with the situation involving other

nominating petitions, for N.J.S.A. 19:23-7 provides that, in regard to non-presidential

nominating petitions

Accompanying the petition, each person indorsed thereinshall file a certificate, stating that he is qualified for the officementioned in the petition, that he is a member of the politicalparty named therein, that he consents to stand as acandidate for nomination at the ensuing primary election ofsuch political party, and that, if nominated, he consents toaccept the nomination, to which shall be annexed the oath ofallegiance . . . .

In the case of the presidential primary, where the person or persons indorsed need not

consent to being indorsed by the petition, N.J.S.A. 19:25-4 authorizes such a person

indorsed without consent to “decline in writing, filed in the office of the Secretary of

State, to have his name printed upon the primary election ballot as a candidate for

President, the Secretary of State shall not so certify such name.” It could be assumed

therefore that if a person so indorsed knew that he did not meet the Constitutional


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requirements for the office, he would decline, thus leading the Secretary to not certify

his name.

There appears to be no affirmative requirement that a person indorsed in a

nominating petition for the Presidency present to the Secretary of State any certification

or other proof that he is qualified for the Office, at least not at the time when nominating

petitions are to be accepted or rejected by the Secretary. This is not meant to suggest

that there is any other such occasion when such proof is required, but to the extent that

this matter relates to the nominating petitions for the Presidential primary, there is no

such requirement. In that case, once a petition is filed endorsing a person and that

person has not filed his declination of such indorsement, a party believing that the

indorsed individual is not qualified can file a challenge on the grounds of ineligibility.

In this matter, as the petitioners’ objection is that Mr. Obama has not provided

the Secretary with proof of the place of his birth by means of a birth certificate or

otherwise, the lack of any obligation on his part to do so means he has not failed to act

in accordance with the applicable law.

The second objection involves the meaning of the Constitutional phrase, “natural

born Citizen.” Discussion and consideration of this issue is of course relevant only on

the understanding that Mr. Obama was born in Hawaii. This issue has been the subject

of litigation concerning Mr. Obama’s candidacy in several jurisdictions. No court,

federal, state or administrative, has accepted the challengers’ position that Mr. Obama

is not a “natural born Citizen” due to the acknowledged fact that his father was born in

Kenya and was a British citizen by virtue of the then applicable British Nationality Act.

Nor has the fact that Obama had, or may have had, dual citizenship at the time of his

birth and thereafter been held to deny him the status of natural born. It is unnecessary

to reinvent the wheel here; the subject has been thoroughly reviewed and no new legal

argument on this issue has been offered here. While there are several decisions that

could be cited, the decision issued by the Court of Appeals of Indiana in 2009 in

Ankeny v. Governor, 916 N.E.2d 678 (Ind. Ct. App. 2009), is representative of the

position taken by courts and other agencies who have considered the merits of the

issue. As the court therein noted, and as the petitioners here have contended, the


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thrust of the argument against Obama’s status as natural born is that there is a “clear

distinction between being a ‘citizen of the United states’ and a ‘natural born Citizen.’”

Id. at 685. The decision notes that the petitioner therein, as here, cites to an eighteenth

century treatise by Emmerich de Vattel, “The Law of Nations” and to various early

sources for support for their argument that one who is the child of a non-citizen cannot

be natural born even if born in the United States. But the Ankeny court, relying upon

the decision of the United States Supreme Court in U.S. v. Wong Kim Ark, 169 U.S.

649, 18 S. Ct. 456, 42 L. Ed. 890 (1898), rejected that position.2

In Wong Kim Ark,

Justice Gray wrote at great length about the understanding of the term “natural born”

and its common law meaning, probing English authorities and concluding that the “law

of England for the last three centuries, beginning before the settlement of this country,

and continuing to the present day, . . . every child born in England of alien parents was

a natural-born subject, unless the child of an ambassador or other diplomatic agent of a

foreign state, or of an alien enemy in hostile occupation of the place where the child

was born. The same rule was in force in all the English colonies upon this continent

down to the time of the Declaration of Independence, and in the United States

afterwards, and continued to prevail under the constitution as originally established.”

This position as to the common law meaning is in accord with Justice Joseph Story’s

statement, concurring in Inglis v. Trustees of Sailors’ Snug Harbor, 28 U.S. (3 Pet.) 99,

7 L. Ed. 617 (1830), “Nothing is better settled at the common law than the doctrine that

the children, even of aliens, born in a country, while the parents reside there under the

protection of the government, and owing a temporary allegiance thereto, are subjects

by birth.” See Wong Kim Ark, 160 U.S. at 660, 18 S. Ct. at 461. In Wong Kim Ark, the

Court also cited Justice Swayne’s comment in United States v. Rhodes, 1 Abbott 26,

40, 41 (1860).

All persons born in the allegiance of the king are natural-born subjects, and all person born in the allegiance of the

2The Wong Kim Ark decision was preceded by Minor v. Happersett, 88 (21 Wall.) U.S. 162, 167, 22

L.Ed. 627 (1874), where the Supreme Court stated that while the Constitution did not say “in words” “whoshall be natural-born citizens” there were “some authorities” who held that “children born within thejurisdiction without reference to the citizenship of their parents” were citizens. The Court concludes that itwas not necessary to decide that issue in Minor. Wong Kim Ark more directly addresses the issue of whois “natural-born” although it is acknowledged that neither of these cases involved the use of the term inconnection with a presidential candidate and the unique Constitutional requirements for holding that office.Nevertheless, the Wong Kim Ark ruling certainly goes very far in defining the term and its meaning in thiscountry. And the decision does not suggest that the common law rule identified therein only applied at thestate level and not on a national basis, as counsel here claims.


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United States are natural-born citizens. Birth and allegiancego together. Such is the rule of the common law, and it isthe common law of this country, as well as of England.

The Wong Kim Ark Court then stated

We find no warrant for the opinion that this great principle ofthe common law has ever been changed in the UnitedStates. It has always obtained here with the same vigor,and subject only to the same exceptions [children ofambassadors, etc.], since as before the Revolution.

[Wong Kim Ark, supra, at 169 U.S. 662-663, 18 S. Ct. at462].

The Georgia Secretary of State recently denied a similar challenge to Mr. Obama’s

status as a natural born citizen in Farrar, et al. v. Obama, OSAH-SECSTATE-CE-

1215136-60-MAHIHI, where Georgia State Administrative Law Judge Mahili relied upon

Arkeny and Wong Kim Ark for his ruling that the President was indeed a natural born

Citizen.

Time does not allow for the fullest discussion of the case law addressing these

issues, but suffice it to say that the status of “natural born Citizen” for Mr. Obama has

not been denied by any court or administrative agency that has addressed the merits of

the issue. This is not the place to write a law review article on the full analysis of the

subject, but there is no legal authority that has been cited or otherwise provided that

supports a contrary position. The petitioners’ legal position on this issue, however well

intentioned, has no merit in law. Thus, accepting for the point of this issue that Mr.

Obama was born in Hawaii, he is a “natural born Citizen” regardless of the status of his

father.

Based upon the above I CONCLUDE that the petitioners have failed to meet

their burden to establish that Barak Obama failed in any obligation to prove to the

Secretary of State that he is qualified to hold the Presidency and that he is a “natural

born Citizen” of the United States of America, as required by the United States

Constitution. The petitions challenging his petitions are DISMISSED.


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I hereby FILE my initial decision with the SECRETARY OF STATE for

consideration.

This recommended decision may be adopted, modified or rejected by the

SECRETARY OF STATE, who by law is authorized to make a final decision in this

matter. If the Secretary of State does not adopt, modify or reject this decision within

forty-five days and unless such time limit is otherwise extended, this recommended

decision shall become a final decision in accordance with N.J.S.A. 52:14B-10.

Any party may file exceptions with the DIRECTOR OF THE DIVISION OF

ELECTIONS, DEPARTMENT OF STATE, by facsimile transmission at (609) 777-1280

within two hours of receipt of the initial decision. A hard copy shall be mailed within

twenty-four hours of the facsimile transmission to the DIRECTOR OF THE DIVISION

OF ELECTIONS, DEPARTMENT OF STATE, 225 West State Street, 5rd

Floor, PO

Box 304, Trenton, New Jersey 08625-0304, marked “Attention: Exceptions.” A copy

of any exceptions must be sent to the judge and to the other parties.

April 10, 2012

DATE JEFF S. MASIN, ALJ

Date Received at Agency: April 10, 2012

Date Mailed to Parties: April 10, 2012

/caa


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EXHIBITS3

For Petitioners

P-1 Letter dated July 29, 2010, from Rolbin to Strunk with attachment

P-2 Computer printout—“Daylife”

P-3 Photocopy of pages of Obama’s High School Yearbook—“OAHUAN

1979”

3Several exhibits were offered that were not accepted into evidence. Others, related to the challenge to

the birth certificate, were never offered after the issue at bar was clarified. The rejected exhibits includedan affidavit of Timothy Lee Adams, an Order of the Alabama Supreme Court deemed irrelevant to thiscase, and a photocopy of what on its face is a Selective Service Registration Form, which has no evidenceas to the authenticity of the document from which the internet copy was made.


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TAB F


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TAB G


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PRESENT: oM.~".S~C\(J.S.C HON. ARTHUR SCHA~(,

Justice.

CHRISTOPHER-EARL STRUNI(, in esse

Plaintiff,

-against-

NEW YORI( STATE BOARD OF ELECTIONS; JAMES A. W ALSH/Co-Chair, DOUGLAS A. I(ELLNERICo-Chair, EVELYN J. AQUILAI COlnlnissioner, GREGORY P. PETERSONI COlnlnissioner, Deputy Director TODD D. VALENTINE, Deputy Director STANLY ZALEN; ANDREW CUOMO, ERIC SCHNEIDERMAN, THOMAS P. DINAPOLI, RUTH NOEMI COLON, in their Official and individual capacity, Fr. JOSEPH A. O'HARE, SJ.; Fr. JOSEPH P. PARKES, S.l; FREDERICK A. O. SCHWARZ, JR.; PETER G. PETERSEN; ZBIGNIEW KAIMIERZ BRZEZINSKI; MARI( BRZEZINSKI; JOSEPH R. BIDEN, JR.; SOEBARKAH (a.k.a Barry Soetoro, a.k.a. Barack Hussein Obatna, a.k.a Steve Dunhatn); NANCY PELOSI; DEMOCRATIC STATE COMMITTEE OF THE STATE OF NEW YORK; STATE COMMITTEE OF THE WORKING FAMILIES PARTY OF NEW

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At an lAS Term, Part 27 of the Suprelne Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 11 th day of April 2012

DECISION & ORDER

Index No. 6500/11


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YORK STATE; ROGER CALERO; THE SOCIALIST WORI(ERS PARTY; IAN 1. BRZEZINSKI; JOHN SIDNEY MCCAIN III; JOHN A. BOEHNER; THE NEW YORK STATE REPUBLICAN STATE COMMITTEE; THE NEW YORK STATE COMMITTEE OF THE INDEPENDENCE PARTY; STATE COMMITTEE OF THE CONSERVATIVE PARTY OF NEW YORI( STATE; PENNY S. PRITZKER; GEORGE SOROS; OBAMA FOR AMERICA; OBAMA VICTORY FUND; MCCAIN VICTORY 2008; MCCAIN-PALIN VICTORY 2008; JOHN AND JANE DOES; and XYZ ENTITIES.

Defendants.

The following papers nUlnbered 1 to 25 read on this motion:

Notice of Motion and Notice of Cross-Motion and and Affidavits (Affinnations ) __________ _

Opposing Affidavits (Affinnations) ________ _

Reply Affidavits (Affinnations) _________ _

Papers NUlnbered:

1 - 13

14 - 21

22 - 25

If the cOlnplaint in this action was a Inovie script, it would be entitled The

Manchurian Candidate Meets The Da Vinci Code. Pro se plaintiff CHRISTOPHER-

EARL STRUNK brings this action against nUlnerous defendants, including President

BARACK OBAMA, Vice President JOSEPH BIDEN, Senator JOHN MCCAIN, Speaker

of the House of Representatives JOHN BOEHNER, fonner House of Representatives

Speaker NANCY PELOSI, Governor ANDREW CUOMO, Attorney General ERIC

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SCHNEIDERMAN, COInptroller THOMAS DI NAPOLI, the NEW YORK STATE

BOARD OF ELECTIONS, billionaires PETER PETERSEN, PENNY PRITZKER,

GEORGE SOROS and six New York State political parties. Thirteen Inotions are

pending before the Court.

Plaintiff STRUNK's cOinplaint is a rmnbling, forty-five page variation on "birther"

cases, containing 150 prolix paragraphs, in at tiInes a stremn of consciousness. Plaintiffs

central allegation is that defendants President OBAMA and Senator McCAIN, despite not

being "natural born" citizens of the United States according to plaintiffs interpretation of

Article II, Section 1, Clause 5 of the U. S. Constitution, engaged with the assistance of

other defendants in an extensive conspiracy, on behalf of the ROlnan Catholic Church to

defraud the Ainerican people and usurp control of the Presidency in 2008. Most of

plaintiff STRUNK's cOinplaint is a lengthy, vitriolic, baseless diatribe against defendants,

but Inost especially against the Vatican, the Roman Catholic Church, and particularly the

Society of Jesus (the Jesuit Order).

Plaintiff STRUNK alleges seven causes of action: breach of state constitutional

fiduciary duty by the NEW YORI( STATE BOARD OF ELECTIONS and public officer

defendants; denial of equal protection for voter expectation of a correct ballot; denial of

substantive due process for voter expectation of a correct ballot; interference with the

right to a republican fonn of governinent by the two Jesuit defendants and defendant

F.A.O. SCHWARZ, JR., who were all melnbers of the New York City Cmnpaign Finance

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Board; interference with plaintiffs election franchise; a schelne to defraud plaintiff of a

reasonable expectation of successful participation in the suffrage process; and, a schelne

by all defendants for unjust enrichlnent.

Plaintiff requests a declaratory judglnent and a preliminary injunction against

defendants, including: enjoining the NEW YORK. STATE BOARD OF ELECTIONS

froln putting Presidential candidates on the ballot for 2012 unless they provide proof of

eligibility, pursuant to Article II, Section 1, Clause 5 of the U. S. Constitution; ordering

that this eligibility certification be sublnitted to the Court for proof of cOlnpliance;

enjoining the Jesuits froln interfering with the 2012 elections; ordering expedited

discovery to detennine the scope of datnages, alleged to be lnore than $12 billion; and,

ordering a jury trial for punitive treble datnages.

Various defendants or groups of defendants, all represented by counsel, present

eleven Inotions to dislniss and one lnotion to adlnit an attorney pro hace vice for this

action. The eleven individual defendants or groups of defendants are, in chronological

order of filing their Inotions to dislniss: defendants President BARACK OBAMA, Vice

President JOSEPH BIDEN, OBAMA FOR AMERICA and the OBAMA VICTORY

FUND; defendants MCCAIN VICTORY 2008, MCCAIN-PALIN VICTORY 2008 and

Senator JOHN MCCAIN; defendants MARK BRZEZINSKI and IAN BRZEZINSI(I;

defendant Representative NANCY PELOSI; defendant GEORGE SOROS; defendants

THE SOCIALIST WORKERS PARTY and ROGER CALERO; defendant Speaker

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JOHN BOEHNER; defendant ZBIGNIEW BRZEZINSKI; defendants Father JOSEPH A.

O'HARE, S.1., Father JOSEPH P. PARKES, S.1. and FREDERICK A. O. SCHWARZ,

JR.; defendant PENNY PRITZI(ER; and defendant PETER G. PETERSEN. The eleven

Inotions to disiniss assert: plaintiff STRUNK lacks standing; plaintiff STRUNI( fails to

state a ciaiin upon which relief can be granted; plaintiff STRUNI( fails to plead fraud

with particularity; the action is frivolous; plaintiff STRUNK is barred by collateral

estoppel froin pursuing this action; and, the Court lacks both personal and subject Inatter

jurisdiction in this action.

The Inotion to adinit counsel pro hace vice for the instant action, by counsel for

defendants MCCAIN VICTORY 2008, MCCAIN-PALIN VICTORY 2008 and Senator

JOHN MCCAIN, for Todd E. Phillips, Esq., a Ineinber in good standing of both the

California and District of Coluinbia bars, is granted.

Further, plaintiff STRUNK crOSS-inoves to consolidate the instant action with a

siInilar "birther" action filed by hiIn, Strunk v Paterson} et at, Index No. 29642/08, in the

Kings County Special Election Part, before Justice David Schinidt. Many of the

defendants oppose consolidation because Strunk v Paterson} et at, Index No. 29642/08, is

a disposed case.

The cross-Inotion to consolidate this action with Strunk v Paterson) et at, Index

No. 29642/08, is denied. Defendants who oppose plaintiffs cross-Inotion are correct.

Justice Schinidt disposed of Strunk v Paterson} et aI, Index No. 29642/08, on the grounds

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of collateral estoppel, failure to join necessary parties and laches.

The eleven Illotions to disilliss are all granted and plaintiff STRUNK's instant

cOlllplaint is disillissed with prejudice. It is clear that plaintiff STRUNK: lacks standing;

fails to state a clailll upon which relief can be granted; fails to plead fraud with

particularity; and, is barred by collateral estoppel. Also, this Court lacks subject matter

jurisdiction and personal jurisdiction over IllOSt, if not all, defendants.

Furthenllore, plaintiff STRUNI('s instant action is frivolous. As will be

explained, plaintiff STRUNI( alleges baseless claiIlls about defendants which are

fanciful, fantastic, delusional and irrational. It is a waste of judicial resources for the

Court to spend tiIlle on the instant action. Moreover, the Court will conduct a hearing to

give plaintiff STRUNK a reasonable opportunity to be heard, pursuant to 22 NYCRR §

130-1.1, as to whether or not the Court should award costs and/or iIllpose sanctions upon

plaintiff STRUNI( for his frivolous conduct. At the hearing, an opportunity will be given

to counsel for defendants to present detailed records of costs incurred by their clients in

the instant action.

Therefore, plaintiff STRUNK, who is not a stranger in the courthouses of New

York, is enjoined frolll cOIlllllencing future litigation in the New York State Unified Court

Systelll against: the NEW YORK STATE BOARD OF ELECTIONS, JAMES A.

WALSH/ Co-Chair, DOUGLAS A. KELLNER/Co-Chair, EVELYN J. AQUILA/

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COllllllissioner, GREGORY P. PETERSON/Collllllissioner, Deputy Director TODD D.

VALENTINE, and Deputy Director STANLY ZALEN; ANDREW CUOMO, ERIC

SCHNEIDERMAN, THOMAS P. DINAPOLI and RUTH NOEMI COLON, in their

Official and individual capacity; Father JOSEPH A. O'HARE, S.1.; Father JOSEPH P.

PARI(ES, S.1.; FREDERICI( A. O. SCHWARZ, JR.; PETER G. PETERSEN;

ZBIGNIEW I(AIMIERZ BRZEZINSKI; MARK BRZEZINSI(I; JOSEPH R. BIDEN,

JR.; BARACI( H. OBAMA, NANCY PELOSI; the DEOMCRATIC STATE

COMMITTEE OF THE STATE OF NEW YORK; the STATE COMMITTEE OF THE

WORI(ING FAMILIES PARTY OF NEW YORI( STATE; ROGER CALERO; the

, SOCIALIST WORI(ERS PARTY; IAN J. BRZEZINSI(I; JOHN SIDNEY MCCAIN III;

JOHN A. BOEHNER; the NEW YORI( STATE REPUBLICAN STATE COMMITTEE;

the NEW YORI( STATE COMMITTEE OF THE INDEPENDENCE PARTY; the

STATE COMMITTEE OF THE CONSERVATIVE PARTY OF NEW YORI( STATE;

PENNY S. PRITZI(ER; GEORGE SOROS; OBAMA FOR AMERICA; OBAMA

VICTORY FUND; MCCAIN VICTORY 2008; and MCCAIN-PALIN VICTORY 2008;

without prior approval of the appropriate Adillinistrative Justice or Judge.

Background

Plaintiff STRUNI( previously cOllllllenced silllilar actions in the United States

District Court for the Eastern District of New York and this Court, the Supreille Court of

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the State of New York, Kings County. In Strunk v New York State Board of Elections, et

aI., Index No. 08-CV4289 (US Dist Ct, EDNY, Oct. 28, 2008, Ross, 1.), the Court

dislnissed the action because of plaintiff s lack of standing, failure to state a clailn and

frivolousness. In that action, plaintiff STRUNK accused the NEW YORK STATE

BOARD OF ELECTIONS of "lnisapplication and lnisadlninistration of state law in

preparation for the Novelnber 4, 2008 Presidential General Election" by, mnong other

things, in ~ 51 of the cOlnplaint, of "failure to obtain and ascertain that Barrack Hussein

Obmna is a natural citizen, otherwise contrary to United States Constitution Article 2

Second 1 Clause 5 [sic]" and delnanded "Defendants are to provide proof that Barrack

Hussein Obmna is a natural born citizen and if not his electors are to be stricken froln the

ballot [sic]." Judge Ross, at page 6 of her decision, held "the court finds that portions of

plaintiffs affidavit rise to the level of the irrational" and, in footnote 6, Judge Ross cited

two prior 2008 Eastern District cases filed by plaintiff STRUNK:. in which "the court has

detennined that pOliions of plaintiff s cOlnplaints have contained allegations that have

risen to the irrational."

My Kings County Suprelne Court colleague, Justice Schlnidt, in Strunk v Paterson,

et aI, Index No. 29642/08, as cited above, disposed of that lnatter, on March 14,2011, by

denying all of plaintiffs lnotions and noting that the statute of lilnitations expired to join

necessary parties President OBAMA and Senator MCCAIN. Further, Justice Schlnidt

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denied plaintiff an opportunity to file affidavits of service nunc pro tunc and to amend the

cOluplaint.

Then, plaintiff STRUNK, eight days later, on March 22, 2011, cOlumenced the

instant action by filing the instant verified cOluplaint. Plaintiff STRUNI('s cOluplaint

recites nUluerous baseless allegations about President OBAMA. These allegations are

fmuiliar to anyone who follows the "birther'; luoveluent: President OBAMA is not a

"natural-born" citizen of the United States; the President is a radical MusliIu; the

President's Hawaiian Certificate of Live Birth does not prove that he was born in Hawaii;

and, President OBAMA is actually a citizen of Indonesia, the United Kingdolu, I(enya, or

all of the above. For exaluple, Plaintiff STRUNK alleges, in ~ 24 of the cOluplaint, that

President OBAMA:

is a Madrasah trained radical Sunni Muslitu by birth right ... practices

Shariah law ... with the full knowledge and blessing of Defendants:

Peter G. Peterson; Zbigniew Brzezinski; his sons Mark and Ian; Penny

S. Pritzker; George Soros; Jesuits Fathers: Joseph P. O'Hare, Joseph

P. Parkes; Brennan Center Executive Frederick A. O. Schwarz, Jr.;

Nancy Pelosi, John Sidney McCain III; John A. Boehner; Hillary Clinton;

Richard Durbin and others. [ sic]

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Then, in ~ 28 of the cOinplaint, plaintiff STRUNI( alleges that President OBAMA

"or his agent(s) as part of the scheine to defraud placed an iinage of Hawaiian

Certification of Live Birth (COLB) on the Interest ... and as a prilna facie fact Ineans the

Hawaii issued COLB does not prove 'natural born' citizenship or birth in Hawaii, only a

long.fonn doclunent would [sic.]"

Plaintiff s alleged vast conspiracy ilnplicates dozens of political and religious

figures, as well as the 2008 presidential candidates froin both Inajor parties, with

nUInerous absurd allegations. They range [roin ciaiining that an associate at the large law

finn of I(irkland and Ellis, LLP Inastenninded the conspiracy because she wrote a law

review article about the U. S. Constitution's natural born citizen requireinent for the

office of President to the assertion that IslaIn is a seventh century A.D. invention of the

Vatican. Further, plaintiff STRUNI( alleges, in ~ 129 of the cOinplaint, that he:

is the only person in the USA to have duly fired fired fired BHO [President

OBAMA] on January 23, 2009 by registered lnail (rendering BHO the

USURPER as Plaintiff is entitled to characterize BHO as) on the grounds

that he had not proven hilnself eligible ... and all acts by the usurper are

void ab initio - a serious probleln ! [sic]

Plaintiffs allegations are strongly anti-Catholic, anti-Musliln and xenophobic. The

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cOlnplaint weaves the occasional true but irrelevant fact into plaintiff s rmnbling stremn

of consciousness.

Moreover, plaintiff STRUNK alleges, in ~ 22 of the cOlnplaint, that defendant

Vice President BIDEN knew that President OBAMA was "not eligible to run for

president because he is not a Natural-Born Citizen with a British Subject Father with a

student visa, however in furtherance of CFR [Council on Foreign Relations] foreign

policy initiatives in the Inid-east supported Soebarkah [President OBAMA] as a MusliIn

[sic]."

Also, Plaintiff STRUNK discusses, in the complaint, then-Senator OBAMA's

April 2008 co-sponsorship of Senate Resolution 511. This resolved unanimously that

Senator MCCAIN, born in 1936 in Panmna, while his father was on active duty in the

United States Navy at Coco Sola Naval Air Station, is a natural born citizen of the United

States. This resolution put to rest questions about Senator MCCAIN'S eligibility to run

for President. However, plaintiff STRUNI( alleges, in ~ 43 of the cOlnplaint, that Senate

Resolution 511 "is part of the schelne to defraud" and "a fraud upon Congress and the

People of the several states and territories contrary to the facts." Then, plaintiff

STRUNK, in ~ 44 of the cOlnplaint, cites Senate Resolution 511 IS text as evidence that

President OBAMA concedes that the definition of natural born citizenship for President

requires both parents of a candidate be U.S. citizens at birth. Further, the complaint

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alleges that JOHN MCCAIN and ROGER CALERO, presidential candidate of the

SOCIALIST WORKERS PARTY, were also ineligible, like then-Senator OBAMA, for

President because of their failure to qualify under the natural born citizen requirelTIent.

Plaintiffs alleged injury, in ~ 47 of the cOlTIplaint, is "[tJhat on November 4,2008,

Plaintiff, as a victim of the SChelTIe to defraud, voted for the electors representing ...

McCain ... not a natural-born U.S. citizen." Further, in ~ 49 of the cOlTIplaint, "as part of

the SChelTIe to defraud, Plaintiff voted for Candidate McCain despite the fact that his wife

is a lTIOSt devoted ROlTIan Catholic whose two sons were educated by Jesuit priests."

Plaintiff alleges, in ~ 51 of the cOlnplaint, that Senator MCCAIN, was born in

Colon Hospital, Colon, Panmna, which was not in the Panama Canal Zone. Further,

plaintiff alleges, in ~ 52 of the cOlTIplaint, that according to the Novelnber 18, 1903 Hay

Bunau Varilla Treaty, by which the United States obtained the Canal Zone, Senator

MCCAIN is not a natural-born citizen.

Plaintiff STRUNI(, in his final twenty pages of the cOlnplaint, alleges that the

n1assive conspiracy to defraud AlTIerican voters was perpetrated by hundreds of

individuals, at the behest of the ROlTIan Catholic Church and especially the Jesuits, with

the ailn of bringing about the Apocalypse through the destruction of the Al Aqsa Mosque

in Jerusalem and the re-building a new Jewish Temple on that site. AlTIOng the entities

that Plaintiff STRUNK ilnplicates in his alleged conspiracy are: the MusliIn Brotherhood;

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the Carlyle Group; the CFR; Halliburton; I(irkland and Ellis, LLP; and, the Brennan

Center for Justice at NYU. For exmuple, in ~ 91 of the cOluplaint, plaintiff STRUNI(

states:

That Inelubers of the Council on Foreign Relations including

Peter G. Petersen as then Chainuan that act with the Jesuit Order by

the oath of allegiance superior to the United States Constitution, Treaties,

and various States' Constitutions that starting no later than January 2006

sought to usurp the executive branch of governluent using Barack Hussein

ObaIna II and John S. McCain III, as a Iuatched set of contenders then

under joint cOIuIuand and control, to preclude any other contender in

preparation for a banking and sub-priine Iuortgage collapse that requires

subsuluing the sovereignty of the people of the united States of Aluerica

and New York to International Monetary Fund conditionality with loss of

the dollar reserve currency status, and collapse of the living standards of

the vast Iuajority of the Aluericans to that of a third world status. [sic]

Plaintiff STRUNI(, in ~ 139 of the cOlnplaint, alleges that defendant GEORGE

SOROS "proves his allegiance to ROlne by proluoting MuslilU Brotherhood overt control

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of Egypt ... We cannot forget that the Jesuits in Cairo created the Musliln Brotherhood in

1928, the Saine year the Order created Opus Dei in Spain [ sic]." Further, plaintiff

STRUNK, in ~ 145 of the cOlnplaint alleges that "Defendants Pritzker and Soros have

lnanaged a crucial role for the Vatican State as a lnelnber of the CFR and high level

Freelnasonry and in conjunction with King Juan Carlos (the I(ing of Jerusaleln) to create

global regionalisln that subsulnes national sovereignty of the USA and the People of New

York state to the detrilnent of plaintiff and those shnilarly situated [sic]."

Eleven defendants or groups of defendants filed lnotions to dislniss, arguing that

plaintiff STRUNI(: lacks standing; failed to state a clailn upon which relief can be

granted; failed to plead fraud with particularity; and, is barred by collateral estoppel.

Further, defendants argue that the Court lacks both personal and subject Inatter

jurisdiction and the instant cOlnplaint is frivolous. Plaintiff, in response, filed an affidavit

in opposition to the Inotions to disiniss and moved to consolidate the instant action with

Strunk v Paterson, et aI, Index No. 29642/08.

On August 22, 2011, I held oral arguinents on the record with respect to the

thirteen instant Inotions. At the hearing, plaintiff STRUNK agreed with the Court that

President OBAMA, with the release of his long-fonn Hawaiian birth certificate, was born

in Honolulu, Hawaii [tr., p. 23]. However, plaintiff STRUNI(, at tr., pp. 30 - 31, argued

that a "natural born citizen," eligible to run for President of the United States, pursuant to

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Article II, Section 1, Clause 5 of the U.S. Constitution, means that not only the candidate

is natural born, but both of the candidate's parents are natural born.

The following exchange at the oral argulnents took place, at tr., p. 34, line 25 - p.

35, line 16:

MR. STRUNK:

THE COURT:

MR. STRUNI(:

My injury, I voted for McCain.

Is that an injury?

My injury is he did not challenge Mr. Obatna

after he went through the whole exercise.

THE COURT: You're saying he shouldhave challenged Mr.

Obatna's presidency?

MR. STRUNI(: Absolutely, and the ballot. The onus is on lne

because he violated his agreelnent with lne. You can't challenge the eligibility

until he's up to be sworn. McCain, since everybody in Congress, since they

didn't want to know about anything, so it was lny responsibility. I fired hiln

by registered lnail within 72 hours.

THE COURT: I saw your letter that you fired the President.

I guess he didn't agree with you because he's still there.

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A discussion ensued as to how plaintiff STRUNI( alleges that President OBAMA

is a MuslilTI [tr., pp. 36 - 38]. The following colloquy took place at tr., p. 37, lines 4 - 8:

THE COURT: How could you COITIe to the conclusion that he's

a radical Sunni MuslilTI?

MR. STRUNI(: Because that's what his records show and that's

what the testilTIOny of individuals who were in class with hilTI show.

The following portions of the exchange, at tr., p. 39, line 9 - p. 43, line 8

delTIOnstrates the irrational anti-Catholic bias of plaintiff STRUNI(:

THE COURT: What I find fascinating, first of all you said

there was a connection there where you say Cindy McCain says she's a

Catholic. I don't lmow ifshe is. I think you said she's Catholic faith,

Cindy McCain.

MR. STRUNI(: She is the largest distributor of Budweiser.

THE COURT: I know that. That doesn't ITIake her a Catholic

necessarily.

MR. STRUNI(: It's the connection that counts. Your don't get

those connections.

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THE COURT: ... I don't know if the Busch fmnily is Catholic.

I don't care.

MR. STRUNI(: That's big business.

THE COURT: That's big business selling beer ... Let's put

Anheuser-Busch to the side.

You said she's a Catholic and you get into this whole riff or rant,

whatever you want to call it, about the Catholic Church and Father O'Hare,

the Vatican. You go on and on about the Vatican ... but it seelns to me

you have this theory that everything is a conspiracy and it always falls

back to Rome.

MR. STRUNI(: That's a Inatter of public record.

THE COURT: Oh, okay.

MR. STRUNI(: What the key is here, Ms. McCain is on the

Board of Directors for a Jesuit run school where her children are going to

school.

THE COURT: Could very well be. I don't know.

MR. STRUNK: ... In fact, it turns out in the discovery of the

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connection to the Jesuits it was so cOlnpelling that when I started really

digging into the background of this schelne of defraud, putting up two

Manchurian candidates at once, which would take advantage of New

York State's weakness in our law which required honesty. We require to

have honesty and didn't get it.

THE COURT: Your case is Inore The Da Vinci Code.

MR. STRUNK: The Da Vinci Code is a phoney book.

THE COURT: With all due respect to John FrankenheiIner,

The Manchurian Candidate according to you and the school of the Vatican,

by that way it describes the gist of your argulnent.

MR. STRUNI(: F rankenheiIner?

THE COURT: He directed the original Manchurian Candidate

Inovle.

MR. STRUNK: The old?

THE COURT: With Frank, not Denzel.

MR. STRUNI(: FrankenheiIner?

THE COURT: 1962 Inovie.

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MR. STRUNK: I was aware of the lnovie at that point, but - -

THE COURT: Okay, forget it.

MR. STRUNK.: This is the one with Frank Sinatra?

THE COURT: And Laurence Harvey.

MR. STRUNI(: The Queen of Dimnondsl Now you've brought - -

THE COURT: You lnentioned The Manchurian Candidate. They

have it in the lnovie.

MR. STRUNI(: I've used it as a pejorative.

THE COURT: I understand that, and I think that The Da Vinci

Code, to lnake SOlne interesting argulnent, that's a work of fiction. At least

I think it's a work of fiction.

MR. STRUNK: The Manchurian Candidate was not a work of

fiction. The work - - I didn't want to get into this area.

THE COURT: Let's not get into analogies. I understand you

have various argulnents but it seelns to all COlne back to ROlne.

MR. STRUNI(: No, it COlnes back to New York State and

whether I have standing in the Suprelne Court of the State of New York

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on the question of who's going to take responsibility to enforce the law

which has not been done.

THE COURT: Okay, that's your argulnent.

Standard for a motion to dismiss

"When detern1ining a n10tion to disluiss, the court n1ust 'accept the facts as

alleged in the con1plaint as true, accord plaintiffs the benefit of every possible favorable

inference, and deternline only whether the facts as a/legedfit within any cognizable

legal theory' (see Arnav Indus., Inc. Retirelnent Trust v Brown, Raysl'nan, Milstein,

Felder & Steiner, 96 NY2d 300, 303 [2001]; Leon v Martinez, 84 NY2d 83,87-88

[1994 J) [En1phasis added]." (Goldlnan v !vfetropolz'tan Life Ins. Co., 5 NY3d 561,

570-571 [2005]). Further, the Court, in Morris v Morris (306 AD2d 449, 451 [2d Dept

2003 J), instructed that:

In detennining whether a cOlnplaint is sufficient to withstand a motion

pursuant to CPLR 3211 (a) (7), "the sole criterion is whether the

pleading states a cause of action, and if frolu its four corners factual

allegations are discerned which taken together lnanifest any cause of

action cognizable at layv a lnotion for dismissal will fail" (Guggenheimer

v Ginsburg, 43 NY2d 268,275 [1977]. The court lnust accept the facts

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alleged in the cOlnplaint to be true and deternline only whether the facts

alleged fit within any cognizable legal theory (see Dye v Catholic Med.

etr. 0/ Brooklyn & Queens, 273 AD2d 193 [2000]). However, bare

legal conclusions are not entitled to the benefit of the presumption

of truth and are not accorded every favorable inference (see

Doria v Masucci, 230 AD2d 764 [2000]). [Enlphasis addecfJ

For a plaintiff to survive a lnotion to dislniss for failure to state a cause of action,

the factual allegations in the clailn cannot be "lnerely conclusory and speculative in

nature and not supported by any specific facts." (Residents/or a More Beautiful Port

Washington) Inc. v Town o/North Hempstead, 153 AD3d 727,729 [2d Dept 1989]).

"The allegations in the cOlnplaint cannot be vague and conclusory."· (Stoianoff v Gahona,

248 AD2d 525 [2d Dept 1998], app dislnissed 92 NY2d 844 [1998], cert denied by

StoianofJv New York Tilnes, 525 US 953 [1998]). (See LoPresti v Massachusetts Mut.

Life Ins. Co., 30 AD3d 474 [2d Dept 2006]; Levin v Isayeu, 27 AD3d 425 [2d Dept

2006]; Hart v Scott, 8 AD3d 532 [2d Dept 2004]).

Plaintiff STRUNK.' s cOlnplaint lnust be dislnissed because the "Court need not,

and should not, accept legal conclusions, unwarranted inferences, unwarranted

deductions, baseless conclusions of law, or sweeping legal conclusions cast in the fonn of

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factual allegations. (Ubnann v Nonna Kamali) Inc., 207 AD2d 691 [ld Dept 1994]; Mark

Hampton) Inc. v Bergreen, 173 AD2d 220 [ld Dept 1991])." (Goode v Charter Oak Fire

Ins. Co., 8 Mise 3d 1023[A], at 2 [Sup Ct, Nassau County 2005]). It is clear that the facts

alleged by plaintiff STRUNK do not fit into any cognizable legal theory.

Plaintiff STRUNK'S cOluplaint is luore of a politicalluanifesto than a verified

pleading. Siluilar lawsuits challenging the eligibility of President OBAMA and Senator

MCCAIN for the presidency based upon plaintiffs incorrect interpretation of the tenu

"natural born Citizen" in Article II, Section 1, Clause 5 of the U.S. Constitution have

been disluissed as a Inatter of law. (See Drake v Obama, 664 F 3d 774 [9th Cir 2011];

Barnett v Obalna) 2009 WL 3861788 [US Dist Ct, CD CA 2009]; Berg v Obalna) 574 F

Supp 2d 509 [ED Pa 2008], affd 586 F3d 234 [3d Cir 2009]; Robinson v Bowen, 567 F

Supp 2d 1144 [ND Ca 2008]; Hollander v McCain, 566 F Supp 2d 63 [D NH 2008]).

Plaintiff STRUNK lacks standing

Plaintiff STRUNI( lacks standing to sue in state court, having suffered no injury.

"Standing to sue is critical to the proper functioning of the judicial systeln. It is a

threshold issue. If standing is denied, the pathway to the courthouse is blocked. The

plaintiff who has standing, however, Inay cross the threshold and seek judicial redress."

(Saratoga County Chawlber ojC071llnerce) Inc. v Pataki, 100 NY2d 801 812 [2003], cert

denied 540 US 1017 [2003]). Professor David Siegel, in NY Prac, § 136, at 232 [4d ed]

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instructs that:

[i]t is the law's policy to allow only an aggrieved person to bring

a lawsuit ... A want of "standing to sue," in other words, is just

another way of saying that this particular plaintiff is not involved

in a genuine controversy, and a sitnple sy llogisln takes us froln there

to a "jurisdictional" dislnissal: (1) the courts have jurisdiction only

over controversies; (2) a plaintiff found to lack "standing" is not

involved in a controversy; and (3) the courts therefore have no

jurisdicti on of the case when such a plaintiff purports to bring it.

"Standing to sue requires an interest in the claitn at issue in the lawsuit that the law

will recognize as a sufficient predicate for detennining the issue at the litigant's request."

(Caprer v Nussba~17n) 36 AD3d 176, 181 [2d Dept 2006]). "An analysis of standing

begins with a detennination of whether the party seeking relief has sustained an injury

(see Society a/Plastic Indus. v County a/Suffolk, 77 NY2d 761,762-773 [1991])."

(Mahoney v Pataki, 98 NY2d 45, 52 [2002]). "The Court of Appeals has defined the

standard by which standing is lneasured, explaining that a plaintiff, in order to have

standing in a particular dispute, Inust delnonstrate an injury in fact that falls within the

relevant zone of interests sought to be protected by law." (Caprer v Nuss bauln at 183).

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A plaintiff, to have standing, "lnust allege personal injury fairly traceable to the

defendant's allegedly unlawful conduct and likely to be redressed by the requested relief."

(Allen v Wright, 468 US 737, 751 [1984]). If a plaintiff lacks standing to sue, the plaintiff

lnay not proceed in the action. (Stark v Goldberg, 297 AD2d 203 [1st Dept 2002]).

Plaintiff STRUNI( clearly lacks standing to sue because he cannot establish an

injury in fact. Plaintiffs claiIn that his Novelnber 2008 vote for Senator MCCAIN for

President was his injury is the type of generalized grievance that is foreclosed by the U.S.

Constitution's particularized injury requirelnent. "We have consistently held that a

plaintiff raising only a generally available grievance about governlnent-claiI11ing only

hann to his and every citizen's interest in proper application of the Constitution and laws,

and seeking relief that no lnore directly and tangibly benefits hil11 than it does the public

at large-does not state an Article III case or controversy." (Lujan v Defenders of Wildlife,

504 US 555, 572 [1992]). "Thus, a private citizen who does not show any special rights

or interests in the 111atter in controversy, other than those COI11111on to all taxpayers and

citizens, has no standing to sue." (Matter of Meehan v County of Westchester, 3 AD3 d

533, 534 [2d Dept 2004]). (See Diederich v Rockland County Police Chiefs' Ass 'n, 33

AD3d 653,654 [2d Dept 2006]; Concerned Taxpayers of Stony Point v Town of Stony

Point, 28 AD3d 657,658 [2d Dept 2006]). Plaintiff STRUNK's cOI11plaint alleges

nothing 1110re than non-justiciable abstract and theoretical clail11s. Therefore, the instant

cOlnplaint, failing to state any allegation of a pmiicularized injury, is disl11issed with

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prejudice. (Silver v Pataki at 539; Mahoney v Pataki at 52).

Plaintiff Strunk's failure to state a cause of action

Alternatively, plaintiff STRUNK.'s cOlnplaint lnust be dislnissed for his failure to

state a cause of action. The Court is under no obligation to accept as true plaintiff's

cOlnplaint, full of legal conclusions and bald assertions cloaked as facts. (Ruffino v New

York City Tr. Auth., 55 AD3d 817,818 [2d Dept 2008]). As noted above, in Morris v

Morris at 451, "bare legal conclusions are not entitled to the benefit of the presulnption of

truth and are not accorded every favorable inference." Moreover, plaintiff has failed to

plead any facts that fit within any cognizable legal theory. (Goldlnan v Metropolitan L?fe

Ins. Co., at 570-571).

Further, plaintiff STRUNI('s often rmnbling and ahnost incolnprehensible

cOlnplaint fails to satisfy the pleading requirelnents of CPLR §30 13 and CPLR Rule

3014. CPLR § 3013 requires statelnents in a pleading to be "sufficiently particular to

give the court and parties notice of the transactions, occurrences, or series of transactions

or occurrences, intended to be proved and the Inaterial elelnents of each cause of action or

defense." CPLR Rule 3014 ilnposes additional pleading requirelnents that "[ e ]very

pleading shall consist of plain and concise staten1ents in consecutively nUlnbered

paragraphs. Each paragraph shall contain, as far as practicable, a single allegation ...

Separate causes of action or defenses shall be separately stated and nUlnbered and lnay be

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stated regardless of consistency."

In Sibersky v New York City (270 AD2d 209 [ld Dept 2000], the Court dislnissed

an mnended petition for its "colnplete failure to follow the dictates of CPLR 3013 or

3014." The Sibersky cOlnplaint consisted of "seven pages of single-spaced, unnulnbered

paragraphs, the ilnport of which is unascertainable," and the Court held that "[p ]leadings

that are not particular enough to provide the court and the parties with notice of the

transaction or occurrences to be proved Inust be dislnissed." COlTIplaints that do not Ineet

the pleading requirelnents of CPLR § 3013 and CPLR Rule 3014 will be dislnissed if

"devoid of specific factual allegations" and do not "indicate the lTIaterial elelTIents of a

clailn and how they would apply to the case." (Megna v Becton Dickinson & Co., 215

AD2d 542 [2d Dept 1995]). In Peri v State (66 AD2d 949 [3d Dept 1979]), afJd 48

NY2d 734 [1979]), a pro se plaintiff s cOlTIplaint was dislTIissed for failure to cOlTIply

with CPLR § 3013. The Court instructed that "[a]t a lTIinilTIUlTI, a valid cOlTIplaint Inust

include alllTIaterial elelTIents of the cause of action."

Plaintiff STRUNK.'s ralTIbling, forty-five page prolix cOlTIplaint, with its irrelevant,

scatter-shot lTIOraSS of alleged historical references, virulent anti-Catholic rhetoric and

extensive political rant fails to plead his alleged causes of action in a lTIanner that is

"sufficiently particular to give the court and parties notice of the transactions,

occurrences, or series of transactions or occurrences, intended to be proved and the

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lnaterial elelnents of each cause of action [CPLR § 3013]" and organized in "plain and

concise statelnents in consecutively nUlnbered paragraphs [CPLR Rule 3014]." "While a

refined and attenuated analysis lnight arguably spell out a shadow of a cause of action,

neither the defendants nor the trial court should be subject to the difficulties." (I(ent v

Tr~17nan, 9 AD2d 649 [1 d Dept 1959]). (See Geist v Rolls Royce Lilnited, 18 AD2d 631

[ld Dept 1962]; Safer Bee/Co., Inc. v Northern Boneless Beef, Inc., 15 AD2d 479 [ld

Dept 1961]). In a case, such as this one, in which "the mnended cOlnplaint is prolix,

confusing, and difficult to answer" and the cOlnplaint contains "a confusing succession of

discrete facts, conclusions, COlnlnents ... and considerable other subsidiary evidentiary

lnatter whose relevance to a particular cause of action is frequently obscure ...

Defendants should not be required to answer such a jUlnble." (Rapaport v Dialnond

Dealers, Club, Inc., 95 AD2d 743,744 [1d Dept 1983]). (See Etu v Cumberland Farms,

Inc., 148 AD2d 821,824 [3d Dept 1989]).

Plaintiff STRUNK fails to plead fraud with particularity

"The elelnents of fraud are narrowly defined, requiring proofby clear and

convincing evidence (cf, Venneer Owners v Gutennan, 78 NY2d 1114, 1116 [1991])."

(Gaidon v Guardian Life Ins. Co. 0/ America, 94 NY2d 330, 349-350 [1999]). Mere

conclusory statelnents alleging the wrong in the pleadings are insufficient. (McGovern v

Nassau County Dept. o/Social Services, 60 AD3d 1016 [2d Dept 2009]; Sargiss v

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Magarelli, 50 AD3d 1117 [2d Dept 2008]; Dumas v Firoito, 13 AD3d 332 [2d Dept

2004J; Sforza v Health Ins. Plan o/Greater New York, 210 AD2d 214, 215 [2d Dept

1994 ]).

The Appellate Division, Second Departlnent, in Giurdanella v Giurdanella (226

AD2d 342, 343 [1996J, held that:

to establish a prilna facie case of fraud, the plaintiff Inust establish

(1) that the defendant Inade Inaterial representations that were false,

(2) that the defendant knew the representations were false and Inade theln

with the intent to deceive the plaintiff, (3) that the plaintiff justifiably

relied on the defendant's representations, and (4) that the plaintiff was

injured as a result of the defendant's representation.

(See I(erusa Co.) LLC v WI OZI515 Real Estate Ltd. Partnership, 12 NY3d 236 [2009J;

S711all v Lorillard Tobacco Co.} Inc. 94 NY2d 43 [1999]; Channel Master Corp. v

Ahllninu711 Lilnited Sales} Inc., 4 NY2d 403 [1958]; S711ith v Alneriquest Mortg. Corp., 60

AD3d 1037 [2d Dept 2009]; Cash v Titan Financial Services} Inc. 58 AD3d 785 [2d Dept

2009]).

Plaintiff STRUNK presents in his cOlnplaint fraud accusations that can be, at best,

described as bare assertions. He does not allege that he relied upon any statelnents of

defendants and fails to allege that he suffered any pecuniary loss as a result of the

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statelnents of any defendant. Actual pecuniary loss lnust be alleged in a fraud action.

(Dress Shirt Sales, Inc. v Hotel Martinique Assoc., 12 NY2d 339,343 [1963]; Rivera v

Wyckoff Heights Hosp., 184 AD2d 558,561 [2d Dept 1992]). The lnere use of the word

"fraud" in a cOlnplaint is not sufficient to cOlnply with the specific requirements of CPLR

§ 3016 (b) that fraud be plead with particularity. Therefore, plaintiff STRUNK fails to

allege the necessary elelnents for a fraud cause of action.

This Court lacks jurisdiction

Plaintiff s cOlnplaint essentially challenges the qualifications of both President

OBAMA and Senator MCCAIN to hold the office of President. This is a non-justiciable

political question. Thus, it requires the dislnissal of the instant cOlnplaint. "The

"nonjusticiability of a political question is prilnarily a function of the separation of

powers." (Baker v Carr, 369 US 186,210 [1962]). Under separation of powers, "[t]he

constitutional power of Congress to regulate federal elections is well established."

(Buckley v Valeo, 424 US 1, 13 [1976]). (See Oregon v Mitchell, 400 US 112 [1970];

Burroughs v United States, 290 US 534 [1934]). Under New York law, "[t]his judicial

deference to a coordinate, coequal branch of governlnent includes one issue of

justiciability generally denOlninated as the 'political question' doctrine." (Matter of New

York State Inspection, Security & Law Enforcewlent Employees, District Council 82,

A FSCME, AFL-CIO v Cuomo, 64 NY2d 233,239 [1984]).

The frmnework for the Electoral College and its voting procedures for President

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and Vice President is found in Article II, Section 1 of the U.S. Constitution. This is

fleshed out in 3 USC § 1 et seq., which details the procedures for Presidential elections.

More specifically, the counting of electoral votes and the process for objecting for the

2009 Presidential election is found in 3 USC § 15, as luodified by Pub L 110-430, § 2,

122 US Stat 4846. This required the lueeting of the joint session of Congress to count the

2008 electoral votes to be held on January 8, 2009. On that day, after the counting of the

Electoral College votes, then-Vice President Dick Cheney luade the requisite declaration

of the election of-President OBAMA and Vice President BIDEN. (155 Cong Rec H76

[Jan. 8 2009]). No objections were luade by luelubers of the Senate and House of

Representatives, which would have resolved these objections ifmade. This is the

exclusive lueans to resolve objections to the electors' selection of a President or a Vice

President, including objections raised by plaintiff STRUNI(. Federal courts have no role

in this process. Plainly, state courts have no role.

Thus, this Court lacks subject luatter jurisdiction to detenuine the eligibility and

qualifications of President OBAMA to be President, as well as the Saine for Senator

MCCAIN or ROGER CALERO. If a state court were to involve itself in the eligibility of

a candidate to hold the office of President, a detenuination reserved for the Electoral

College and Congress, it luay involve itself in national politicalluatters for which it is

institutionally ill-suited and interfere with the constitutional authority of the Electoral

College and Congress. Accordingly, the political question doctrine instructs this Court

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and other courts to refrain froln superseding the judglnents of the nation's voters and

those federal governlnent entities the Constitution designates as the proper forulns to

detennine the eligibility of presidential candidates.

Justice Robert Jackson, concurring in Youngstown Sheet & Tube Co. v Sawyer

(343 US 579, 635 1952], in discussing separation of powers stated that "the Constitution

diffuses power the better to secure liberty." Justice Thurgood Marshall, in his majority

opinion in Us. v Munoz-Flores (495 US 385, 394 [1990]), on the subject of separation of

powers, quoted froln Justice Antonin Scalia's dissent in Morrison v Olson, 487 US 654,

697 [1988], in which Justice Scalia observed that "[t]he FraIners of the Federal

Constitution ... viewed the principle of separation of powers as the absolutely central

guarantee of a just Governlnent." This Court will not disrupt the separation of powers as

enunciated in the U.S. Constitution and articulated by Justices Jackson, Marshall and

Scalia.

Further, plaintiff STRUNI( has failed to properly serve defendants, including

President OBAMA and Senator MCCAIN, pursuant to the CPLR. With nUlnerous other

grounds present for dislnissing the instant action, the Court will not elaborate upon how

plaintiff STRUNK failed to obtain personal jurisdiction over defendants.

Plaintiff STRUNK is precluded by collateral estoppel

Collateral estoppel or "issue preclusion," as observed by Prof. Siegel, in NY Prac

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§443, at 748-749, [4th ed], "scans the first action and takes note of each issue decided in

it. Then if the second action, although based on a different cause of action, attelnpts to

reintroduce the Saine issue, collateral estoppel intervenes to preclude its relitigation and to

bind the party, against wholn the doctrine is being invoked, to the way the issue was

decided in the first action." In Ryan v New York Telephone Con1pany (62 NY2d 494, 500

[1984]), the Court of Appeals, held that "[t]he doctrine of collateral estoppel, a narrower

species of res judicata, precludes a party froln relitigating in a subsequent action or

proceeding an issue clearly raised in a prior action or proceeding and decided against that

party or those ill privity, whether or not the tribunals or causes of action are the Saine

[Emphasis added]." Two prerequisites lnust be met before collateral estoppel can be

raised. The Court of Appeals, in Buechel v Bain (97 NY2d 295 [2001], cert denied 535

US 1096 [2002]), instructed at 303-304, that:

There lnust be an identity of issue which has necessarily been decided

in the prior action and is decisive of the present action, and there

lnust have been a full and fair opportunity to contest the decision now

said to be controlling (see, Gilberg v Barnieri, 53 NY2d 285,291

[1981]). The litigant seeking the benefit of collateral estoppellnust

delnonstrate that the decisive issue was necessarily decided in the prior

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action against a party, or one in privity with a party (see) id.). The

party to be precluded froln relitigating the issue bears the burden of

delnonstrating the absence of a full and fair opportunity to contest

the prior detennination. [Emphasis addedJ

(See D}Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659,664 [1990]; Gramatan

HOlne Investors Corp. v Lopez, 46 NY2d 481, 485 supra; Westchester County Correction

Officers Benevolent Ass )n} Inc. v County of Westchester, 65 AD3d 1226, 1227 [2d Dept

2009]; Franklin Dev. Co. Inc. v Atlantic Mut. Ins. Co., 60 AD3d 897,899 [2d Dept

2009]; Luscher ex. rei Luscher v Arrua, 21 AD3d 1005 [2d Dept 2005]).

Plaintiff STRUNI( litigated Inany of the issues in the instant action in US District

Court, but also in the previously cited Strunk v Paterson} et ai, Index No. 29642/08,

before Justice Schlnidt. He acknowledged this, in ~ 2 of the instant cOlnplaint, by stating:

That this cOlnplaint is fairly traceable to the events and actions

leading up to the Party priInaries during the 2008 election cycle for the

ballot access of the Presidential slates at the Novelnber 4, 2008 General

Election as cOlnplained of in the related election law case, Strunk v

Paterson, et al. NYS Suprelne Court in the County of I(ings with

Index No. 29642-08 before the Honorable David I Schlnidtof Part 1

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as an election law lnatter. [sic]

As lnentioned above, Justice Schlnidt disposed of Strunk v Paterson, et aI, Index No.

29642/08, on March 14,2011, by denying all of plaintiffs lnotions and noting that the

statute of lilnitations expired to join necessary parties President OBAMA and Senator

MCCAIN. Therefore, collateral estoppel precludes plaintiff STRUNI( froln pursuing the

instant action.

Denial of plaintiff's cross-motion to consolidate

Plantiffs cross-Iuotion to consolidate this action with Strunk v Paterson, et aI,

Index No. 29642/08, and transfer the instant action to Justice Schluidt is denied. Justice

Schlnidt, on Noven1ber 19, 2008, in Strunk v Paterson, et aI, declined to sign plaintiff

STRUNK's order to sho,v cause to enjoin Governor Paterson from convening New

York' sDeceluber 2008 n1eeting of the Electoral College, because "plaintiff is collaterally

estopped.~' This refers to the Eastern District action dislnissed by Judge Ross, in which

she found the cOlnplaint frivolous.

After a hiatus of several years, plaintiff STRUNK, by order to shovv cause,

atten1pted to a111end his c0111plaint. Justice Schlnidt, in his January 11, 2011 short- forn1

order, denied this 1110tion in its entirety.

Then, plaintiff STRlJNI( n10ved to reargue. On March 14, 2011, Justice Schlnidt,

in a short-fonn order, denied reargun1ent because plaintiff "failed to join a necessary

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party President OBAMA and Senator MCCAIN and the statute of lin1itations to do so

expired." Finally, on Noven1ber 9, 2011, H. Williatn Van Allen, an ally of plaintiff

STR1JNI(, tnoved to intervene as a plaintiff to challenge President OBAMA's placetnent

on the upcolning 2012 ballot. In his N oven1ber 22, 2011 short-forn1 order, Justice

Schn1idt denied Mr. Van Allen's intervention "in all respects." Further, Justice Schtnidt

held "[t]his is an action that \vas con11nenced in 2008 and has relnained inactive for

several years and it would be ilnproper to allo\v plaintiff to raise new Inatters before the

Court after the extended period of inactivity."

Plaintiff's frivolous conduct

"A cOlnplaint containing as it does both factual allegations and legal conclusions, is

frivolous where it lacks an arguable basis" and "'elnbraces not only the inarguable legal

conclusion, but also the fanciful factual allegation." (Neitzke v Willialns, 490 US 319,

325 [1989]). Plaintiff STRUNI(, as cited above, alleges nUlnerous fanciful, fantastic,

delusional, irrational and baseless clailns about defendants. The U.S. Suprelne Court,

citing Neitzke, held in Denton v Hernandez (504 US 25, 32-33 [1992]), that:

A couli tnay disllliss a clainl as factually frivolous only if the facts

alleged are "clearly baseless," 490 US at 127,109 S Ct at 1833, a

category encolnpassing allegations that are "fanciful," id., at 325,

109 S Ct at 1831, "fantastic," id., at 328, 109 S Ct at 1833, and

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"delusional," ibid. As those words suggest, a finding of factual

frivolousness is appropriate when the facts alleged rise to the level

of the irrational or the wholly incredible.

In Denton, the plaintiff alleged that he had been repeatedly raped by a nUlnber of

ininates at several different prisons, all using the Salne lnodus operandi. The Court

concluded that these allegations were "wholly fanciful" and disinissed the claiin as

frivolous as a result. In Shoelnaker v Us. Departlnent of Justice (164 F 3d 619,619 [2d

Cir 1998]), plaintiff alleged that the government and television stations conspired to: "( 1)

broadcast infonnation about his feces on national television; and (2) file and publicized

false charges of child abuse against hiln." The Court, citing Neitzke and Denton,

dislnissed the action as frivolous because plaintiff s ""factual clailns are irrational and

incredible." Another case applying the frivolous standards of Neitzke and Denton is Perri

v Bloolnberg (2008 WL 2944642 [US Dist Ct, ED NY 2008]), in which plaintiff alleged

that a secret unit of the NYPD was atteInpting to kill hiln and his cats. The Court

disinissed the case, finding that plaintiff s cOlnplaint has ""a litany of sensational

allegations peliaining not only to the NYPD, but also to various anns of governinent, both

state and federal. Accordingly, Perri has not established that he is entitled to a

prelilninary injunction, because his allegations of irreparable hann are unsupported and

bizarre. "

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Plaintiff STRUNK'S con1plaint, as well as his opposition to defendants' Inotions

to dislniss, alleges that the correct interpretation of the natural born citizen clause of the

U.S. Constitution requires a natural born citizen to have been born on United States soil

and have two United States born parents. Despite plaintiff's assertions, Article II, Section

1, Clause 5 does not state this. No legal authority has ever stated that the natural born

citizen clause Ineans what plaintiff STRUNK. claiIns it states. "The phrase 'natural born

Citizen' is not defined in the Constitution, see Minor v Happersett, 88 US 162, 167

[1875]), nor does it appear anywhere else in the doculnent, see Charles Gordon, Who Can

Be President a/the United States: An Unresolved Eniglna, 28 Md. L. Rev. 1, 5 (1968)."

(Hollander v McCain at 65). Plaintiff STRUNI( cannot wish into existence an

interpretation that he chooses for the natural born citizen clause. There is no arguable

legal basis for the proposition that both parents of the President lnust have been born on

U.S. soil. This assertion is as frivolous as the lnultitude of alleged allegations outlined

above.

Moreover, President OBAMA is the sixth U. S. President to have had one or both

of his parents not born on U.S. soil. Plaintiff STRUNK and his fellow "birthers" lnight

not realize that: both parents of President Andrew Jackson were born in what is now

Northern Ireland; President Jatnes Buchanan's father was born in County Donegal,

Ireland; President Chester A. Arthur's father was born in what is now Northern Ireland;

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President Woodrow Wilson's luother was born in Carlisle, England; and, President

Herbert Hoover's luother was born in Norwich, Ontario, Canada.

Therefore, the prosecution of the instant action by plaintiff STRUNK, with its

fanciful, fantastic, delusional, irrational and baseless clailus about defendants appears is

frivolous. 22 NYCRR § 130-1.1 (a) states that "the Court, in its discretion luay ilupose

financial sanctions upon any party or attorney in a civil action or proceeding who engages

in frivolous conduct as defined in this Part, which shall be payable as provided in section

130-1.3 of this Subpart." 22 NYCRR § 130-1.1 (c) states:

conduct is frivolous if:

(1) it is cOlupletely without luerit in law and cannot be supported by a

reasonable arguluent for an extension, luodification or reversal of existing

law;

(2) it is undeliaken priluarily to delay or prolong the resolution of the

litigation, or to harass or lualiciously injure another; or

(3) it asserts luaterial factual stateluents that are false.

Conduct is frivolous and can be sanctioned, pursuant to 22 NYCRR § 130-1.1 (c), if"it

is cOlupletely without luerit ... and cannot be supported by a reasonable arguluent for an

extension, luodification or reversal of existing law." (Gordon v Marrone) 202 AD2d 104,

110 [2d Dept 1994] Iv denied 84 NY 2d 813 [1995]). (See RI(O Properties) Inc. v

BOYlnelgreen, 77 AD3d 721 [2d Dept 2010]; Finkelman v SERE) LLC, 71 AD3d 1081 [2d

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Dept 2010]; Glenn v Annunziata, 53 AD3d 565, [2d Dept 2008]; Miller v Dugan, 27

AD3d 429 [2d Dept 2006]; Greene v Doral Conference Center Associates} 18 AD3d 429

[~d Dept 2005]; Ofinan v Calnpos, 12 AD3d 581 [2d Dept 2004]). It is clear that plaintiff

STRUNK.'s cOlnplaint: "is cOlnpletely without Inerit in law;" "is undertaken prilnarily

... to harass" defendants; and, "asserts Inaterial factual statements that are false."

Several years before the drafting and ilnplelnentation of the Part 130 Rules for

costs and sanctions, the Court of Appeals (A. G. Ship Maintenance Corp. v Lezak, 69

NY2d 1, 6 [1986]) observed that "frivolous litigation is so serious a probleln affecting the

proper adlninistration of justice, the courts Inay proscribe such conduct and ilnpose

sanctions in this exercise of their rule-lnaking powers, in the absence of legislation to the

contrary (see NY Const, art VI, § 30, Judiciary Law § 211 [1] [b] )."

Part 130 Rules were subsequently created, effective January 1, 1989, to give the

courts an additional relnedy to deal with frivolous conduct. In Levy v Carol Management

Corporation (260 AD2d 27,33 [1st Dept 1999]) the Court stated that in detennining if

sanctions are appropriate the Court Inust look at the broad pattern of conduct by the

offending attorneys or parties. Further, "22 NYCRR 130-1.1 allows us to exercise our

discretion to ilnpose costs and sanctions on an errant paliy." (Levy at 33). Moreover,

"[ s] anctions are retributive, in that they punish past conduct. They also are goal oriented,

in that they are useful in deterring future frivolous conduct not only by the particular

parties, but also by the Bar at large." (Levy at 34).

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The Court, in Kernisan) MD. v Taylor (171 AD2d 869 [2d Dept 1991]), noted that

the intent of the Part 130 Rules "is to prevent the waste of judicial resources and to deter

vexatious litigation and dilatory or Inalicious litigation tactics (cl Minister) Elders &

Deacons of Refm. Prot. Church of City of New York v 198 Broadway, 76 NY2d 411; see

Steiner v Bonhamer, 146 Misc 2d 10) [Emphasis addeaj." To adjudicate the instant

action, with the cOlnplaint replete with fanciful, fantastic, delusional, irrational and

baseless allegations about defendants, cOlnbined with plaintiff STRUNK's lack of

standing, the barring of this action by collateral estoppel and the Court lacking personal

jurisdiction and subject Inatter jurisdiction over Inany of the defendants, is "a waste of

judicial resources." This conduct, as noted in Levy, Inust be deterred. In Weinstock v

Weinstock (253 AD2d 873 [2d Dept 1998]) the Court ordered the InaxiInuln sanction of

$10,000.00 for an attorney who pursued an appeal "coinpletely without Inerit," and

holding, at 874, that "[ w]e therefore award the Inaxiinuin authorized mnount as a sanction

for this conduct (see) 22 NYCRR 130-l.1) calling to Inind thatfrivolous litigation causes

a substantial waste of judicial resources to the detriInent of those litigants who COlne to

the Court with real grievances [Emphasis addeaj." Citing Weinstock) the Appellate

Division, Second Departlnent, in Bernadette Panzella) P. C. v De Santis (36 AD3d 734

[2d Dept 2007]) affinned a Supreine Couli, Richinond County $2,500.00 sanction, at 736,

as "appropriate in view of the plaintiffs waste of judicial resources [Emphasis addeaj."

In Navin v Mosquera (30 AD3d 883, 883 [3d Dept 2006]) the Court instructed that

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when considering if specific conduct is sanctionable as frivolous, "courts are required to

eXaInine 'whether or not the conduct was continued when its lack of legal or factual basis

was apparent [or] should have been apparent' (22 NYCRR 130-l.1 [c])."

Therefore, the Court will eXaInine the conduct of plaintiff STRUNK in a hearing,

pursuant to 22 NYCRR § 130-1.1, to detennine if plaintiff STRUNI( engaged in frivolous

conduct, and to allow plaintiff STRUNI( a reasonable opportunity to be heard. Further, at

the hearing, an opportunity will be given to counsel for defendants to present detailed

records of costs incurred by their clients in the instant action.

Plaintiff precluded from relitil:ation of the same claims

.The Court is concerned that plaintiff STRUNI( continues to use the scarce

resources of the New York State Unified Court Systein to fruitlessly pursue the SaIne

claiIns. He is no stranger to litigation in Supreine Court, Kings County, Civil Tenn.

Further, plaintiff STRUNI( has had several bites of the SaIne apple in U.S. District Court,

which resulted in findings of his engageinent in frivolous conduct with, as stated by Judge

Ross, cOlnplaints that "have contained allegations that have risen to the irrational." The

Court should not have to expend resources on the next action by Mr. STRUNK that will

be a new variation on the SaIne theIne of defendants' alleged Inisdeeds and Inisconduct.

The continued use of the New York State Unified Court Systein for the personal pursuit

by plaintiff STRUNI( of irrational cOlnplaints against defendants Inust cease.

Our courts have an interest in preventing the waste of judicial resources by a party

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who knows that his or lawsuit has no legitilnate basis in law or fact and continues to

attelnpt to relitigate resolved clailns and issues. (Martin-Trigona v Capital Cities/ABC)

Inc., 145 Misc 2d 405 [Sup Ct, New York County 1989]). The Court, in Sassower v

Signorelli (99 AD2d 358,359 [2d Dept 1984]), noted that "public policy lnandates free

access to the courts ... and, ordinarily, the doctrine of fonner adjudication will serve as

an adequate reluedy against repetitious suits." Then, the Sassower Court observed, in the

next paragraph, that: "[ n ]onetheless, a litigious plaintiff pressing a frivolous clailu can be

extreluely costly to the defendant and can waste an inordinate mnount of court tilue,

tilne that this court and the trial courts can ill afford to lose (see Harrelson v United

States, 613 F2d 114)."

Pro se litigants wholn abuse judicial process have had their access to the courts

lilnited. In Spren10 v Babchik (155 Misc2d 796 (Sup Ct, Queens County 1996]), the

Court, in enjoining a pro se litigant froln instituting any further actions and proceedings

in any court in the New York State Unified Court SystelTI, citing Sassower and I{ane v

City o/New York, 468 FSupp 586 [SD NY 1979], ajJd 614 F2d 1288 [2d Cir 1979]). The

I{ane Court, at 592, held:

The fact that one appears pro se is not a license to abuse the

process of the Court and to use it without restraint as a weapon of

harasslnent and libelous bOlnbardluent. The injunction herein ordered

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is fully warranted to put an end to such activity ... COlnlnencelnent of

action upon action based on the SaIne facts dressed in different garb,

after thrice being rejected on the lnerits and having been repeatedly

warned that the clailns were barred by res judicata, can only be explained

as lnalicious conduct.

In Muka v New York State Bar Association (120 Misc 2d 897 [Sup Ct, TOlnpkins

County 1983]), a pro se plaintiff cOlnlnenced a fourth unsuccessful lawsuit against the

State Bar Association upon various conspiracy theories. The Court in dislnissing the

action, based upon res judicata, observed, at 903, that "all litigants have a right to

ilnpartial and considered justice. Insofar as any litigant unnecessarily conSUlnes

inordinate alnounts of judicial tilne and energy, he or she deprives other litigants of their

proper share of these resources. A balance lnust be kept."

Therefore, plaintiff STRUNK, with his history of abusing the civil justice systeln,

by bringing pro se actions devoid of lnerit against the saIne defendants, is precluded froln

relitigating the saIne claiIns and issues which waste court resources and is enjoined froln

bringing any future actions in the N ew York State Unified Court Systeln against: the

_ NEW YORK. STATE BOARD OF ELECTIONS, JAMES A. WALSHI Co-Chair,

DOUGLAS A. KELLNER/Co-Chair, EVELYN J. AQUILAIColnlnissioner, GREGORY

P. PETERSONIColnlnissioner, Deputy Director TODD D. VALENTINE, and Deputy

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Director STANLY ZALEN; ANDREW CUOMO, ERlC SCHNEIDERMAN, THOMAS

P. DINAPOLI and RUTH NOEMI COLON, in their Official and individual capacity;

Father JOSEPH A. O'HARE, S.1.; Father JOSEPH P. PARKES, S.1.; FREDERlCK A. O.

SCHWARZ, JR.; PETER G. PETERSEN; ZBIGNIEW I(AIMIERZ BRZEZINSKI;

MARK BRZEZINSKI; JOSEPH R. BIDEN, JR.; BARACI( H. OBAMA, NANCY

PELOSI; the DEOMCRATIC STATE COMMITTEE OF THE STATE OF NEW YORl(;

the STATE COMMITTEE OF THE WORl(ING FAMILIES PARTY OF NEW YORK

STATE; ROGER CALERO; the SOCIALIST WORl(ERS PARTY; IAN J.

BRZEZINSKJ; JOHN SIDNEY MCCAIN III; JOHN A. BOEHNER; the NEW YORK

STATE REPUBLICAN STATE COMMITTEE; the NEW YORK STATE COMMITTEE

OF THE INDEPENDENCE PARTY; the STATE COMMITTEE OF THE

CONSERVATIVE PARTY OF NEW YORI( STATE; PENNY S. PRlTZKER;

GEORGE SOROS; OBAMA FOR AMERICA; OBAMA VICTORY FUND; MCCAIN

VICTORY 2008; and MCCAIN-PALIN VICTORY 2008; without the prior approval of the

appropriate AdIninistrative Justice or Judge. The Court instructed, in Vogelgesang v

Vogelgesang (71 AD3d 1132, 1134 [2d Dept 2010]), that:

The Suprelne Court providently exercised its discretion in enjoining

the appellant froln filing any further actions or Inotions in the ... action

without prior written approval. Public policy generally Inandates free

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access to the courts (see Sassower v Signorelli, 99 AD2d 358,359

[1984]). However, a party Illay forfeit that right ifhe or she abuses the

judicial process by engaging in Illeritless litigation lllotivated by spite or

ill will (see Duffy v Holt-Harris, 260 AD2d 595 [2d Dept 1999J; Shreve v

Shreve, 229 AD2d 1005 [2d Dept 1996]). There is mllple basis in

this record to support the Supreille Court's detennination to prevent

the appellant froin engaging in further vexatious litigation.

(See Scholar v Tilninsky, 87 AD3d 577 [2d Dept 2011]; Dimeryv Ulster Sav. Bank, 82

AD3d 1034 [2d Dept 2011],' Capogrosso v I(ansas, 60 AD3d 522 [ld Dept 2009];

Silnpsol1 v Ptaszynska, 41 AD3d 607 [2d Dept 2007]; Pignataro v Davis, 8 AD3d 487 [2d

Dept 2004]; Cangro v Cangro, 288 AD2d 417 [2d Dept 2001J; Mancini v Mancini, 269

AD2d 366 [2d Dept 2000]; Braten v Finkelstein, 235 AD2d 513 [2d Dept 1997]).

Conclusion

Accordingly, it is

ORDERED, that the Illation by counsel for defendants MCCAIN VICTORY 2008,

MCCAIN-PALIN VICTORY 2008 and Senator JOHN MCCAIN, to adillit Todd E.

Phillips, Esq., a Illelnber in good standing of both the California and District ofColulllbia

bars, for the instant action pro hace vice is granted; and it is further

ORDERED, that the Illotions to disilliss plaintiff CHRISTOPHER-EARL

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STRUNI('s instant cOlnplaint by: defendants President BARACK OBAMA, Vice

President JOSEPH BIDEN, OBAMA FOR AMERICA and the OBAMA VICTORY

FUND; defendants MCCAIN VICTORY 2008, MCCAIN-PALIN VICTORY 2008 and

Senator JOHN MCCAIN; defendants MARK BRZEZINSKI and IAN BRZEZINSKI;

defendant Representative NANCY PELOSI; defendant GEORGE SOROS; defendants

THE SOCIALIST WORI(ERS PARTY and ROGER CALERO; defendant Speaker

JOHN BOEHNER; defendant ZBIGNIEW BRZEZINSKI; defendants Father JOSEPH A.

O'HARE, SJ., Father JOSEPH P. PARI(ES, SJ. and FREDERICI( A. O. SCHWARZ,

JR.; defendant PENNY PRITZI(ER; and defendant PETER G. PETERSEN; are all

granted, with the instant cOlnplaint disinissed with prejudice; and it is further

ORDERED, that the cross-Inotion of plaintiff CHRISTOPHER EARL-STRUNK

to consolidate the instant action with Strunk v Paterson, et aI, Index No. 29642/08, before

Justice David Schinidt, is denied; and it is further

ORDERED, that plaintiff CHRISTOPHER EARL-STRUNI( is hereby enjoined

froin cominencing any future actions in the New York State Unified Court Systein

against: the NEW YORK STATE BOARD OF ELECTIONS, JAMES A. WALSHI Co

Chair, DOUGLAS A. KELLNER/Co-Chair, EVELYN 1. AQUILA/Colnlnissioner,

GREGORY P. PETERSON/Colnlnissioner, Deputy Director TODD D. VALENTINE,

and Deputy Director STANLY ZALEN; ANDREW CUOMO, ERIC SCHNEIDERMAN,

THOMAS P. DINAPOLI and RUTH NOEMI COLON, in their Official and individual

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capacity; Father JOSEPH A. O'HARE, SJ.; Father JOSEPH P. PARKES, SJ.;

FREDERICI( A. O. SCHWARZ, JR.; PETER G. PETERSEN; ZBIGNIEW I(AIMIERZ

BRZEZINSI(I; MARI( BRZEZINSI(I; JOSEPH R. BIDEN, JR.; BARACI( H. OBAMA,

NANCY PELOSI; the DEOMCRA TIC STATE COMMITTEE OF THE STATE OF

NEW YORI(; the STATE COMMITTEE OF THE WORI(ING FAMILIES PARTY OF

NEW YORK STATE; ROGER CALERO; the SOCIALIST WORKERS PARTY; IAN J.

BRZEZINSKI; JOHN SIDNEY MCCAIN III; JOHN A. BOEHNER; the NEW YORI(

STATE REPUBLICAN STATE COMMITTEE; the NEW YORI( STATE COMMITTEE

OF THE INDEPENDENCE PARTY; the STATE COMMITTEE OF THE

CONSERVATIVE PARTY OF NEW YORK STATE; PENNY S. PRITZKER;

GEORGE SOROS; OBAMA FOR AMERICA; OBAMA VICTORY FUND; MCCAIN

VICTORY 2008; and MCCAIN-PALIN VICTORY 2008; without prior approval of the

appropriate Adlninistrative Justice or Judge; and it is further

ORDERED, that any violation of the above injunction by CHRISTOPHER-EARL

STRlJNI( n1ay subject Cf-IRISTOPHER-EARL STRUNI( to costs, sanctions and

conten1pt proceedings; and it is further

ORDERED, that it appearing that plaintiff CHRISTOPHER EARL-STRUNK,

engaged in "frivolous conduct," as defined in the Rules of the Chief Adlninistrator, 22

NYCRR § 130-1.1 (c), and that pursuant to the Rules of the Chief Adlninistrator, 22

NYCRR § 130.1.1 (d), "[a]n award of costs or the ilnposition of sanctions may be Inade

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· .. upon the court's own initiative, after a reasonable opportunity to be heard," this Court

will conduct a hearing affording plaintiff CHRISTOPHER EARL-STRUNK "a

reasonable opportunity to be heard" and counsel for all defendants Illay present to the

Court detailed records of costs incurred by their clients in the instant action, before me in

Part 27, on Monday, May 7, 2012, at 2:30 P.M., in ROOin 479,360 Admlls Street,

Brooklyn, NY 11201; and it is further

ORDERED, that Ronald D. Bratt, Esq., Illy Principal Law Clerk, is directed to serve

this order by first-class Inail, upon CHRISTOPHER EARL-STRUNK, 593 Vanderbilt

Avenue, # 281, Brooklyn, New York, 11238 and upon counsel for all defendants in this

action.

This constitutes the Decision and Order of the Court.

DR M. SCHACK. J. S. C.

1'tll \D M SCH~C~ J .S.C HON. AR I J"lV1" .

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TAB H


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m Case 3:12-cv-00036-JAG Document 2 Filed 01/23/12 Page 1 of 3 PageID# 47

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINJ.A----:~:---;lL;---r;::irE~-;::\r\\~·

Richmond Division -.!!..I~-. -!i2=-3-2-:;0I=-Z---' \ ~ I

. \

I \

CHARLES TISDALE, CLERK U.S. DISTp:, ~- ~~=-=;-!n ·AICHMO}~I:\ .. ""~~ . ____ .. ~-' 1.----

Plaintiff,

v. Civil Action No.3: 12-cv-00036-JAG

HONORABLE BARACK H. OBAMA, II, et ai,

Defendants.

ORDER

This matter is before the Court on the Motion to Proceed in Forma Pauperis and Financial

Affidavit filed by the plaintiff, Charles Tisdale, on January 17, 2012. Upon due consideration,

the Court finds that Mr. Tisdale is unable to pay the costs of proceeding in the instant case.

Accordingly, the Court grants Mr. Tisdale's Motion to Proceed in Forma Pauperis. For the

following reasons, however, the Court DISMISSES the Complaint with prejudice.

In proceedings in Forma Pauperis, the Court may dismiss the case at any time if the court

finds that the action fails to state a claim on which relief may be granted. See 28 U.S.C. §

1915(e)(2)(B)(ii); Eriline Co. S.A. v. Johnson, 440 F.3d 648,656 (4th Cir. 2006).

When interpreting a pro se complaint, the Court must afford the complaint a liberal

construction. See Laber v. Harvey, 438 F.3d 404, 413 n.3 (4th Cir. 2006). The Court need not,

however, attempt "to discern the unexpressed intent of the plaintiff." Id. The Fourth Circuit has

stated: "[T]hough [pro se] litigants cannot, of course, be expected to frame legal issues with the

clarity and precision ideally evident in the work of those trained in law, neither can district courts


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be required to conjure up and decide issues never fairly presented to them." Beaudett v. City of

Hampton, 775 F.2d 1274, 1276 (4th Cir. 1985).

Mr. Tisdale seeks an injunction enjoining the Virginia State Board of Elections from

certifying any candidate who lacks standing as a "natural born citizen" from appearing on the

ballot for the upcoming presidential general election on November 6, 2012. Specifically, Mr.

Tisdale cites Barack Obama, Mitt Romney, and Ron Paul as ineligible to appear on the ballot, on

the grounds that each had at least one parent who was not a citizen of the United States.

The Court rules that the Complaint does not state a claim upon which relief may be

granted. The eligibility requirements to be President of the United States are such that the

individual must be a "natural born citizen" of the United States and at least thirty-five years of

age. U.S. Const. art. II, § 1. It is well settled that those born in the United States are considered

natural born citizens. See, e.g., United States v. Ark, 169 U.S. 649, 702 (1898) ("Every person

born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the

United States."); Perkis v. Elg, 99 F.2d 408, 409 (1938). Moreover, "those born 'in the United

States, and subject to the jurisdiction thereof,' ... have been considered American citizens under

American law in effect since the time of the founding ... and thus eligible for the presidency."

Hollander v. McCain, 566 F. Supp. 2d 63, 66 (D.N.H 2008). Thus, Mr. Tisdale's contention that

President Obama, Governor Romney, and Congressman Paul are not eligible to be President due

to their nationalities is without merit.

Accordingly, the Court dismisses the Complaint for failure to state a claim. This

dismissal is with prejudice, as the Court finds that allowing leave to refile would yield the same

result, given the underlying premise of Mr. Tisdale's claim.

2


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Mr. Tisdale may appeal the decision of the Court. Should he wish to appeal, written

notice of appeal must be filed within thirty (30) days of the date of entry hereof. Failure to file a

timely notice of appeal may result in the loss of the right to appeal.

It is so ORDERED.

Let the Clerk send a copy of this Order to all counsel of record and Mr. Tisdale.

Date: January 20,2012 Richmond, VA

3

lsI John A. Gibney, Jr United States District J dge


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m

Exhibit C


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m

CRS Report for CongressPrepared for Members and Committees of Congress

Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement

Jack Maskell Legislative Attorney

November 14, 2011

Congressional Research Service

7-5700 http://www.crs.gov/

R42097


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m Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement


Summary The Constitution sets out three eligibility requirements to be President: one must be 35 years of age, a resident “within the United States” for 14 years, and a “natural born Citizen.” There is no Supreme Court case which has ruled specifically on the presidential eligibility requirements (although several cases have addressed the term “natural born” citizen), and this clause has been the subject of several legal and historical treatises over the years, as well as more recent litigation.

The term “natural born” citizen is not defined in the Constitution, and there is no discussion of the term evident in the notes of the Federal Convention of 1787. The use of the phrase in the Constitution may have derived from a suggestion in a letter from John Jay to George Washington during the Convention expressing concern about having the office of Commander-in-Chief “devolve on, any but a natural born Citizen,” as there were fears at that time about wealthy European aristocracy or royalty coming to America, gaining citizenship, and then buying and scheming their way to the presidency without long-standing loyalty to the nation. At the time of independence, and at the time of the framing of the Constitution, the term “natural born” with respect to citizenship was in use for many years in the American colonies, and then in the states, from British common law and legal usage. Under the common law principle of jus soli (law of the soil), persons born on English soil, even of two alien parents, were “natural born” subjects and, as noted by the Supreme Court, this “same rule” was applicable in the American colonies and “in the United States afterwards, and continued to prevail under the Constitution ...” with respect to citizens. In textual constitutional analysis, it is understood that terms used but not defined in the document must, as explained by the Supreme Court, “be read in light of British common law” since the Constitution is “framed in the language of the English common law.”

In addition to historical and textual analysis, numerous holdings and references in federal (and state) cases for more than a century have clearly indicated that those born in the United States and subject to its jurisdiction (i.e., not born to foreign diplomats or occupying military forces), even to alien parents, are citizens “at birth” or “by birth,” and are “natural born,” as opposed to “naturalized,” U.S. citizens. There is no provision in the Constitution and no controlling American case law to support a contention that the citizenship of one’s parents governs the eligibility of a native born U.S. citizen to be President.

Although the eligibility of native born U.S. citizens has been settled law for more than a century, there have been legitimate legal issues raised concerning those born outside of the country to U.S. citizens. From historical material and case law, it appears that the common understanding of the term “natural born” in England and in the American colonies in the 1700s may have included both the strict common law meaning as born in the territory (jus soli), as well as the statutory laws adopted in England since at least 1350, which included children born abroad to British fathers (jus sanguinis, the law of descent).

The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth,” either by being born “in” the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship “at birth.” Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an “alien” required to go through the legal process of “naturalization” to become a U.S. citizen.


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Contents History of the Qualifications Clause in the Federal Convention of 1787........................................ 4

Procedural History..................................................................................................................... 4 Apparent Purpose and Intent ..................................................................................................... 5

Common Law Meaning of the Term “Natural Born” Citizen or Subject......................................... 9 Common Law and the Constitution........................................................................................... 9 Common Law and Persons Born “In” the Country ................................................................. 11 Common Law and Persons Born Abroad to Citizen-Parents................................................... 14

Common Understanding in 18th Century of the Term “Natural Born” Citizen.............................. 16 Citizenship at Birth: Case Law and Interpretations ....................................................................... 25

Legal Cases and Senator McCain............................................................................................ 34 Legal Cases and President Obama........................................................................................... 38

Allegations of Loss of Citizenship .................................................................................... 43 Assertion of Two Citizen-Parent Requirement.................................................................. 44

Contacts Author Contact Information........................................................................................................... 50


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Congressional Research Service 1

he standing qualifications to be President of the United States are set out in the Constitution, at Article II, Section 1, clause 5, and state three specific requirements: one must be at least 35 years old, a resident “within the United States” for 14 years, and a

“natural born Citizen.” The constitutional provision states as follows:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been Fourteen Years a Resident within the United States.

Questions from time-to-time have arisen concerning whether one who is a U.S. citizen “at birth” because of the operation of federal law, is also a “natural born” citizen for purposes of the presidential eligibility clause. Such questions often concern persons born abroad to parents who are U.S. citizens, or persons born abroad when only one parent is a U.S. citizen who had resided in the United States.1 Although such individuals born abroad may clearly be U.S. citizens “at birth” by statute, would such persons also be “natural born Citizens,” or is eligibility to the Presidency limited only to “native born” citizens?2 Additionally, questions have been recently raised by some as to whether one born “in” the United States of one or more alien parents, and who is thus clearly a U.S. citizen “at birth” by the Fourteenth Amendment, as well as by federal law and common law, was intended to be considered a “natural born” citizen for purposes of the presidential eligibility clause.

The Constitution does not define the term “natural born Citizen,” nor are the notes from the debates at the Constitutional Convention of 1787 instructive as to any specific collective intent of the framers concerning the meaning of the term. Furthermore, the Supreme Court has never needed to address this particular issue within the specific context of a challenge to the eligibility of a candidate under Article II, Section 1, clause 5, the only place in the entire Constitution that the phrase appears, although federal courts have discussed the concept extensively with respect to other issues of citizenship. Consequently, although there are numerous Supreme Court cases, as well as other federal and state case law, discussing the phrase and its meaning from which conclusions may be drawn, there has still been certain speculation on the scope of the language.

According to the Supreme Court, words and phrases used, but not defined, within the Constitution, should “be read in light of British common law,” since the U.S. Constitution is “framed in the language of the English common law.”3 Although the English common law is not “binding” on federal courts in interpreting the meaning of words or phrases within the Constitution, nor is it necessarily to be considered the “law” of the United States (as it is for the individual states specifically incorporating it), it can be employed to shed light on the concepts and precepts within the document that are not defined there, but which are reflected in the corpus of British law and jurisprudence of the time. As noted by Chief Justice (and former President) Taft, writing for a unanimous Supreme Court, the framers of the U.S. Constitution “were born

1 See 8 U.S.C. § 1401, for categories of persons who are deemed to be U.S. citizens “at birth.” 2 See, e.g., Means, Is Presidency Barred to Americans Born Abroad? U.S. NEWS AND WORLD REPORT, Vol. 39, No. 26, December 23, 1955, at 26-30; Is Gov. George Romney Eligible to be President ? THE NEW YORK LAW JOURNAL, October 16 and 17, 1967, p. 1; McCain’s Canal Zone Birth Prompts Queries About Whether That Rules Him Out, N.Y. TIMES, February 28, 2008. 3 Smith v. Alabama, 124 U.S. 465, 478 (1888). See also, more recently, Carmel v. Texas, 529 U.S. 513, 521 (2000), where the Supreme Court noted that the meaning of an undefined term in the Constitution “necessarily requires some explanation,” and that “the necessary explanation is derived from English common law well known to the Framers.”

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and brought up in” the English common law, they “thought and spoke in its vocabulary,” and that English common law was thus what the “statesmen and lawyers of the Convention” employed for the meaning of the terms in the Constitution “confident that they could be shortly and easily understood.”4

The term “natural born” in the context of citizenship appears to derive from the British concept that those born with a “natural liege” (allegiance, tie, or connection) to the nation or to the sovereign, were (under English terminology) “natural born” subjects under the law in England and in the American colonies at the time of independence. There appears to be little scholarly debate that the English common law at the time of independence included at least all persons born on the soil of England (jus soli, that is, “law of the soil”), even to alien parents, as “natural born” subjects (unless the alien parents were diplomatic personnel of a foreign nation, or foreign troops in hostile occupation). As noted by the Supreme Court of the United States, this “same rule” was applicable in the colonies and “in the United States afterwards, and continued to prevail under the Constitution” with respect to “natural born” U.S. citizenship.5

Although the British common law at the time of independence with regard to jus soli was apparently clear, there were varying opinions as whether those born abroad of English subjects were “natural born” subjects under the common law, or were considered “natural born” subjects merely by long-standing statutory law. Some commentators have claimed that the statutory provisions of English law, first appearing during the reign of Edward III in 1350, were “incorporated” into, or in the alternative, “reflected” the already established English common law.6 Regardless of the technical state of the common law in England with respect to children born abroad, however, there appear to be significant arguments that the corpus of English law applicable within the American colonies, known to the framers and adopted in the states, was broader than merely the “law of the soil.” Legal commentators have contended that the body of English law carried forward in the United States relating to citizenship included both the strict common law notion of jus soli, as well as that part of the law of descent (jus sanguinis) included in long-standing British law7 (including as “natural born” subjects those born abroad of an English father), and that this was part of the “common understanding” of the term “natural born” to the framers at the time of the drafting of the Constitution.8

4 Ex parte Grossman, 267 U.S. 87, 108-109 (1925). 5 United States v. Wong Kim Ark, 169 U.S. 649, 658 (1898). See also Inglis v. Sailor’s Snug Harbour, 3 Pet. (28 U.S.) 99, 120 (1830), see specifically Story, J., dissenting on other grounds, 28 U.S. at 164. 6 See discussion of controversy of whether the English common law included only those born on the soil, regardless of the nationality of the parents (jus soli), or whether the common law also included those born abroad of an English father (jus sanguinis), in Flourny, Richard W. (Assistant Solicitor, Department of State), Dual Nationality and Election, 30 YALE LAW JOURNAL 545, 548 (1921). 7 See Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, Volume I, “Of the Rights of Persons,” 354-358, 361 (1765): “ ... by several more modern statutes ... all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.” As noted by the Supreme Court in Weedin v. Chin Bow, 274 U.S. 657, 660 (1926): “These statutes applied to the colonies before the War of Independence.” For early references to the term natural liege subjects in the American colonies, see Sydney George Fisher, THE EVOLUTION OF THE CONSTITUTION OF THE UNITED STATES, (Lippincott 1897) at 189, citing the Virginia Charter of 1611-1612, and the Concessions of East Jersey, 1665. 8 See, for example, Charles Gordon, Who Can Be President of the United States: The Unresolved Enigma, 28 MD. L. REV. 1, 12, 18 (1968). Charles Gordon was formerly General Counsel of the United States Immigration and Naturalization Service.


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Considering the history of the constitutional provision, the clause’s apparent intent, the English common law expressly applicable in the American colonies and in all of the original states, the common use and meaning of the phrase “natural born” subject in England and the American colonies in the 1700s, and the subsequent action of the first Congress in enacting the Naturalization Act of 1790 (expressly defining the term “natural born citizen” to include those born abroad to U.S. citizens),9 it appears that the most logical inferences would indicate that the phrase “natural born Citizen” would mean a person who is entitled to U.S. citizenship “by birth” or “at birth.” Such interpretation, as evidenced by over a century of American case law, would include as natural born citizens those born in the United States and subject to its jurisdiction regardless of the citizenship status of one’s parents,10 or those born abroad of one or more parents who are U.S. citizens (as recognized by statute),11 as opposed to a person who is not a citizen by birth and is thus an “alien” required to go through the legal process of naturalization to become a U.S. citizen.12

The weight of scholarly legal and historical opinion, as well as the consistent case law in the United States, also supports the notion that “natural born Citizen” means one who is a U.S. citizen “at birth” or “by birth.”13 The Constitution of the United States of America, Analysis and Interpretation, notes that “[w]hatever the term ‘natural born’ means, it no doubt does not include a person who is ‘naturalized,’” and, after discussing historical and legal precedents and arguments, concludes that “[t]here is reason to believe ... that the phrase includes persons who

9 Act of March 26, 1790, 1 Stat. 103, 104. 10 U.S CONST. amend. XIV; 8 U.S.C. § 1401(a); see Lynch v. Clarke, 3 N.Y. Leg. Obs. 236, 242, 244 (1 Sand. ch. 583) (1844); United States v. Rhodes, 27 F. Cas. 785 (1 Abb. 28) (Cir.Ct.Ky 1866); In re Look Tin Sing, 21 F. 905 (Cal. Cir. 1884); United States v. Wong Kim Ark, 169 U.S. 649, 658, 661-662, 693 (1898); Kwok Jan Fat v. White, 253 U.S. 454, 457 (1920); Yamauchi v. Rogers, 181 F. Supp. 934, 935-936 (D.D.C. 1960); Diaz-Salazar v. INS, 700 F.2d 1156, 1160 (7th Cir. 1982), cert. denied, 462 U.S. 1132 (1983); Mustata v. U.S. Department of Justice, 179 F.3d 1017, 1019 (6th Cir. 1999); Hollander v. McCain, 566 F.Supp.2d 63, 66 (D.N.H. 2008); Ankeny v. Governor of the State of Indiana, 916 NE2d 678 (2009), petition to transfer jurisdiction denied (Ind. Supreme Court, Apr. 5, 2010); United States v. Carlos Jesus Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir. 2011). 11 See, e.g.,, 8 U.S.C. § 1401(c),(d),(e) and (g); Robinson v. Bowen, 567 F.Supp.2d 1144 , 145-146 (N.D. Cal. 2008); United States v. Carlos Jesus Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir. 2011). 12 Schneider v. Rusk, 377 U.S. 163, 165 (1964). 13 Edward S. Corwin, THE PRESIDENT, OFFICE AND POWERS, 1787-1984, at 38-39 (5th Revised ed. by Bland, Hindson, and Peltason, 1984); James H. Kettner, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608-1870 (U.N.C. Press 1978); Gordon, Mailman, & Yale-Loehr, IMMIGRATION LAW AND PROCEDURE, §§ 91 and 92 (rev. ed. 2010); Jill Pryor, The Natural Born Citizen Clause and Presidential Eligibility: An Approach to Resolving Two Hundred Years of Uncertainty, 97 YALE L.J. 881 (1988); Charles Gordon, Who Can Be President of the United States: The Unresolved Enigma, 28 MD. L. REV. 1 (1968); Richard W. Flourny, (Assistant Solicitor, Department of State), Dual Nationality and Election, 30 YALE LAW JOURNAL 545, 550 (1921); Michael Nelson, Constitutional Qualifications for President, PRESIDENTIAL STUDIES QUARTERLY, Vol. XVII, Number 2, at 384-391 (Spring 1987); Warren Freedman, Comment, Presidential Timber: Foreign Born Children of American Parents, 35 CORNELL L.Q. 357 (1950); Frederick Van Dyne (Assistant Solicitor of the Department of State), CITIZENSHIP OF THE UNITED STATES (New York 1904); J. Michael Medina, The Presidential Qualification Clause in the Bicentennial Year: The Need to Eliminate the Natural Born Citizen Requirement, XII OKLA. CITY UNIV. L. R. 253, 268 (1987); Akil Amar, Natural Born Killjoy, Why the Constitution Won’t Let Immigrants Run for President, and Why That Should Change, LEGAL AFFAIRS, 16, 17 (Mar-Apr. 2004): “... the presidency and vice presidency were reserved for citizens by birth.” For the opposing view, see Isidor Blum, Is Gov. George Romney Eligible to Be President?, N.Y.L.J., Oct. 16 & 17, 1967, at 1, which contends that only those born “in” the United States are “natural born” citizens under common law principles. In another analyses, one author would include the children of U.S. citizens who are born abroad when one or both of the parents are abroad under the direction of and officially representing, or on duty for, the United States Government, either in the military or in a civilian governmental role. Christina Lohman, Presidential Eligibility: The Meaning of the Natural-Born Citizen Clause, 36 GONZAGA LAW REVIEW 349, 369 (2000/2001).


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become citizens at birth by statute because of their status in being born abroad of American citizens.”14

History of the Qualifications Clause in the Federal Convention of 1787

Procedural History The particular clause concerning presidential eligibility and citizenship was placed in the Constitution and approved at the Convention of 1787 with no debate, objection, or comment. The five-person Committee of Detail, appointed by the Convention delegates to report a draft Constitution containing issues and items agreed upon by the Convention up to that point,15 was instructed by the Convention, on July 26, 1787, to consider provisions requiring certain qualifications for Congress and the Presidency.16 Although the subsequent report on August 6 from the Committee of Detail contained qualifications for Senator and Representative, it did not offer qualifications for President.17 On August 20, the Convention adopted a motion by Mr. Gerry of Massachusetts that the “Committee be instructed to report proper qualifications for the President ...,”18 and on August 22, the Committee of Detail reported its recommendation that several additions be made to the report it had made, including the following concerning the qualifications of the President: “[H]e shall be of the age of thirty five years, and a Citizen of the United States, and shall have been an Inhabitant thereof for Twenty one years.”19 The report of the Committee of Detail was then “considered” and “postponed” on August 22, so “that each member might furnish himself with a copy.”20

In the subsequent days, the provisions for the qualifications of President were not taken up and thus not agreed upon by the whole Convention, and on August 31, 1787, the delegates agreed to “refer such part of the Constitution as have been proposed, and such parts of reports as have not been acted upon to a Committee of a Member from each State,”21 which has been referred to as the (third) “Committee of Eleven,” or the “Committee on Postponed Matters.” On Tuesday, September 4, 1787, the (third) Committee of Eleven “partially” reported to the Convention

14 Congressional Research Service, Library of Congress, THE CONSTITUTION OF THE UNITED STATES OF AMERICA, ANALYSIS AND INTERPRETATION, S. Doc. 108-17, at 456-457 (2004). [CONSTITUTION ANNOTATED]. The United States Senate has also stated its opinion by way of unanimous consent, in S.Res. 511, 110th Congress, that natural born citizens includes those persons born abroad of U.S. citizens. 15 Max Farrand, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, Vol. II, at 85, 97 (Yale University Press 1911) [hereinafter Farrand]. On Monday July 23, 1787, the Convention delegates unanimously agreed to appoint the committee “for the purpose of reporting a Constitution conformably to the Proceedings aforesaid ....” 16 II Farrand, at 116-117, 121-125. The instruction was to draft provisions “requiring certain qualifications of landed property and citizenship in the United States for the Executive, the Judiciary, and the Members of both branches of the Legislature of the United States ....,” although the word “landed” was removed upon agreement of a motion by Mr. Madison of Virginia to strike out that word (and thus that qualification). Id. at 123-124. 17 Id. at 177-179, 185. 18 Id. at 337, 344. 19 Id. at 366-367. 20 Id. at 376. 21 Id. at 473.


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several “additions and alterations,” including the specific reference for the first time to a presidential qualification to be a “natural born” citizen:

No Person except a natural born Citizen, or a Citizen of the U.S. at the time of the adoption of this Constitution shall be eligible to the office of President: nor shall any Person be elected to that office, who shall be under the age of 35 years, and who has not been in the whole, at least 14 years a resident within the U.S.22

The language proposed on presidential eligibility on September 4 was agreed to without objection and without debate on Friday, September 7, 1787.23 Stylistic and grammatical changes were made through the Committee of Style to the clause on presidential qualifications to conform to the other phrasing and usage in the document, which resulted in the final language adopted by the delegates and sent to the states for ratification.24

Apparent Purpose and Intent Tracing the development of this clause through the Constitutional Convention of 1787 clearly indicates that there were no specific discussions or other explications within the Convention on the meaning of the specific term “natural born” citizen. This does not mean, however, that there were no discussions at all of the concept of a citizenship qualification for federal officers. In fact, the issue of citizenship for Members of Congress was one that garnered much consideration and debate in the Convention of 1787 and, it has been contended, it is within the framework of this discussion that the eventual citizenship eligibility requirement was adopted for President and may be analyzed.25

In stating concerns regarding the citizenship of congressional officeholders, and the required length of such citizenship, George Mason argued that although he “was for opening a wide door for immigrants; ... [h]e did not chuse to let foreigners and adventurers make laws for us”; nor would he want “a rich foreign Nation, for example Great Britain, [to] send over her tools who might bribe their way” into federal office for “invidious purposes.”26 These arguments were echoed later by delegates at the Convention who were concerned with “admitting strangers into our public Councils,”27 and feared that “foreigners without a long residency in the Country ... bring with them, not only attachments to other Countries; but ideas of Govt. so distinct from ours that in every point of view they are dangerous.”28 Thus, citizenship requirements of seven years for Representatives and nine years for Senators were eventually adopted, although the Convention did not act upon the wishes of Mr. Gerry “that in the future the eligibility might be confined to Natives.”29 When the citizenship eligibility requirements for President were

22 Id. at 493-494, 498. 23 According to Madison’s notes: “The (section 2.) ... requiring that the President should be a natural-born Citizen, &c & have been resident for fourteen years, & be thirty five years of age, was agreed to nem: con:” II Farrand, at 536. 24 II Farrand, at 574, 598. 25 See discussion in Michael Nelson, Constitutional Qualifications for President, PRESIDENTIAL STUDIES QUARTERLY, Vol. XVII, Number 2, at 384-391 (Spring 1987). 26 II Farrand, at 216. 27 Id. at 235 (Mr. Morris). 28 Id. at 236 (Mr. Butler). 29 Id. at 268. Mr. Gerry stated his fear that “Persons having foreign attachments will be sent among us & insinuated into our councils, in order to be made instruments for their purpose.”


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eventually reported and recommended after the debates and discussion of congressional eligibility requirements, there were no further discussions of the issue in Convention.30

Although there was no discussion concerning the precise meaning or derivation of the term “natural born,” there is in the Documentary History of the Convention a possible clue from where the qualification for President to be a “natural born” citizen may have derived. The history of the Convention indicates that George Washington, the presiding officer, received a letter dated July 25, 1787, from John Jay, which appears to raise for the first time the issue of a requirement to be a “natural born” citizen of the United States as a requisite qualification to be President:

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.31

There is no specific indication as to the precise role this letter and its “hint” actually played in the adoption by the Convention of the particular qualification of being a “natural born” citizen. However, no other expressions of this particular term are evident in Convention deliberations prior to the receipt of Jay’s letter, and the September 4 draft of the Constitution reported from the Committee of Eleven to the delegates, at a time shortly after John Jay’s letter had been acknowledged by Washington, contained for the first time such a qualification.32 The timing of Jay’s letter, the acknowledgment of its receipt by Washington on September 2, and the first use of the term in the subsequent report of the Committee of Eleven, on September 4, 1787, may thus indicate more than a mere coincidence. If this were the case, then the concern over “foreigners,” without sufficient allegiance to the United States, serving as President and Commander-in-Chief, would appear to be the initial and principal motivating concern of the framers, in a somewhat similar vein as their concerns over congressional citizenship qualifications.33

Such purpose of the “natural born” citizen qualification was expressed by Justice Joseph Story in his historic treatise on the Constitution in 1833:

It is indispensable, too, that the president should be a natural born citizen of the United States ... [T]he general propriety of the exclusion of foreigners, in common cases, will scarcely be doubted by any sound statesman. It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt

30 Presidential scholar Michael Nelson explains that when the qualifications of electors were not to be regulated or prescribed by the Constitution, then the qualifications of the elected needed to be so prescribed. In the case of the President, however, the Convention at first had intended under the Virginia Plan that the President be chosen by the legislature, and thus it did not focus on the need for express qualifications of the President until later in the Convention. Nelson, PRESIDENTIAL STUDIES QUARTERLY, at 392-393. 31 III Farrand, Appendix A, LXVIII, at 61; Documentary History of the Constitution, IV, at 237. 32 A letter from Washington to John Jay on September 2, 1787, references Jay’s “hint” and suggestion to Washington. III Farrand, Appendix A, XCIX, at 76; Documentary History Of the Constitution, IV, 269. 33 The provision was not directed at foreign-born statesmen or politicians in the country at the time of the drafting of the Constitution, such as Alexander Hamilton who was born in the Caribbean, since the eligibility clause expressly “grand-fathered” in those who were citizens at the time of the adoption of the Constitution. Hamilton, in any event, supported the idea of limiting the eligibility to be President to a current citizen, or thereafter one who is “born a Citizen of the United States.” III Farrand, at App. F, p. 629.


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interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elective monarchies of Europe.34

“Ambitious foreigners” who may be “intriguing for the office” of head of state, which had been the unfortunate experience in Europe, appeared to be a generalized and widespread concern at the time of the drafting of the Constitution, as was the concern over the possibility of allowing foreign royalty, monarchs, and their wealthy progeny, or other relatives to control the government of the new nation. Max Farrand, in his treatise on the adoption of the Constitution, discussed these concerns and rumors during the Convention of 1787:

During the sessions of the convention, but it would seem especially during the latter part of August, while the subject of the presidency was causing so much disquiet, persistent rumors were current outside that the establishment of a monarchy was under consideration. The common form of the rumor was that the Bishop of Osnaburgh, the second son of George III, was to be invited to become King of the United States.35

Others have noted that rumors were extant concerning colonial statesmen approaching or making inquiries of other foreign royalty about seeking the chief executive’s position of the United States, including rumors involving Price Henry of Prussia, and the ascension of King George’s second son, Frederick, Duke of York. Presidential scholar Michael Nelson has commented:

The presidency they were creating was, the framers realized, the closest analog in the new constitution to a king, just by being a separate, unitary executive. Even before the convention assembled, von Steuben had disseminated a rumor that Nathaniel Gorham, president of Congress under the Articles of Confederation and a convention delegate from New Hampshire, had approached Price Henry of Prussia about serving as America’s King. Similar stories involved the ascendancy of King George’s second son, Frederick, Duke of York. During the summer, these rumors gained new currency. The story spread that the convention, whose deliberations were secret, was advancing the plot behind closed doors.36

The question of not only “foreign influence” of wealthy persons immigrating to the United States to become President, but also the issue of an American monarchy, were thus very real concerns of the populace, as well as the framers, and appeared to establish the context in which the role, qualifications, duties, and powers of an American chief executive were developed.37 As noted by constitutional scholar Akhil Amar, the concerns and anxieties over ambitious and duplicitous foreigners, and the “possibility that a foreign earl or duke might cross the Atlantic with immense wealth and a vast retinue, and then use his European riches to buy friends on a scale that no home-grown citizen could match,” led the framers to incorporate Article II’s “most questionable

34 Joseph Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, Vol. 3, § 1473, pp. 332-33 (1833). Story distinguished “natural born” citizens eligible to be President from “foreigners” who are generally excluded, noting the exception only for a “naturalized citizen to become president” when such person was a citizen at the time of the adoption of the Constitution “out of respect for those distinguished revolutionary patriots, who were born in a foreign land, and yet had entitled themselves to high honors in their adopted country.” Story, at § 1473, pp. 332-333. 35 Max Farrand, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES, 173 (Yale University Press 1913). 36 Nelson, PRESIDENTIAL STUDIES QUARTERLY, at 395. 37 “The Framers had no antecedent to draw upon when creating the presidency and determining the qualifications for the office. There was no executive officer under the Articles of Confederation. The Framers’ only model was a negative one: they wanted an executive officer who would not have the attributes of a hereditary monarch.” Lawrence Freidman, An Idea Whose Time Has Come – The Curious History, Uncertain Effect, and Need for Amendment of the ‘Natural Born Citizen’ Requirement For the Presidency, 52 ST. LOUIS L.J. 137, 141 (Fall 2007).


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eligibility rule.”38 Amar also agrees that the framers’ aversion to hereditary monarchies appeared to play an additional role in erecting a barrier to immigrants being President within the Constitution—a document that was otherwise, for its time, enlightened as permitting immigrants to weave their way into the fabric of American political and social life:

These anxieties had been fed by England’s 1701 Act, which inclined early Americans to associate the very idea of a foreign-born head of state with the larger issue of monarchial government. Though England banned foreigners from all other posts, it imposed no natural-born requirement on the head of state himself. In fact, the 1701 Act explicitly contemplated foreign born future monarchs—the German House of Hanover, in particular. By 1787 this continental royal family had produced three English kings named George, only the third of whom had been born in England itself. Article II’s natural-born language squarely rejected the 1701 idea of future foreign-born heads of state, in no small part because many republicans had come to link the idea (perhaps more sociologically than logically) with hereditary succession and foreign intrigue. Foreign-born princes might be good enough to rule in the Old World but should be kept out of the New World order—or at least the New World presidency.39

The apparent purposes of this citizenship clause were thus to assure the requisite fealty and allegiance to the nation from the person to be the chief executive of the United States, and to prevent wealthy foreign citizens, and particularly wealthy foreign royalty and their relatives, from coming to the United States, becoming naturalized citizens, and then scheming and buying their way into the Presidency or creating an American monarchy. The possibility of satisfying these purposes would appear to be as likely from an interpretation of the term “natural born” citizen which would include one who is a citizen “at birth” by either common law principles of jus soli, that is, being born on the soil (in the general usage of the term, one who is “native born”), or by the operation of statutory law of the principles of jus sanguinis, that is, through the law of descent by being born to U.S. citizens abroad. That is, one who is a citizen of the United States “at birth” by descent under federal law could develop the requisite allegiances and reverences for the United States passed down, inculcated, and taught by one’s parent-citizens, and would have a lifetime of allegiance to the United States at least as strong, in a theoretical sense, as one of a “native born” citizen.40 Native born citizens, that is, those born “in” the country, who are subject to its jurisdiction, regardless of the nationality or citizenship of their parents, have always under British common law, as well as under the laws of the original states, and then the United States since its founding, been considered to have the “natural” allegiance and ties to the nation.41

38 Akhil Reed Amar, AMERICA’S CONSTITUTION, A BIOGRAPHY, at 164 (Random House 2005). 39 Id. at 165. 40 See Tuan Anh Nguyen v. INS, 533 U.S. 53, 64-65 (2001): Citizenship statutes requiring certain relationships of children born abroad to U.S. citizen parent or parents are adopted “… to ensure that the child and the citizen parent have some demonstrated opportunity or potential to develop not just a relationship that is recognized, as a formal matter, by the law, but one that consists of the real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States.” See also Miller v. United States, 523 U.S. 420, 438-440 (1998) noting the interest of “fostering ties with this country ….” 41 See Kettner, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608-1870, at 287 (UNC Press 1978): “No one appeared to re-examine and justify Coke’s idea of the ‘natural-born citizen.’ Americans merely continued to assume that ‘birth within the allegiance’ conferred the status and its accompanied rights. Natives were presumably educated from infancy in the values and habits necessary for self-government, and there was no need to worry about their qualifications for membership.” See also discussion in Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, Volume I, “Of the Rights of Persons,” 354, 357-358 (1765).


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Common Law Meaning of the Term “Natural Born” Citizen or Subject

Common Law and the Constitution If the term “natural born” with respect to citizenship conveyed a concept clearly within the English common law, there would then be a strong implication that such term and its legal meaning would either have been incorporated into, or at least would strongly influence the framers in using such phrase, as well as subsequent interpretive construction by the courts of the relevant provision of the U.S. Constitution.42 As noted by the Supreme Court,

There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.43

Many of the terms used in the U.S. Constitution were not specifically defined in that document (such as “natural born” citizen, the privilege of the writ of “habeas corpus,” and the prohibitions against “bills of attainder” and “ex post facto” laws, for example), and thus referral to the English common law, “well known” to the framers and applicable in the American colonies, must be made for a definitional reference for such terms. The Supreme Court has explained with reference to the constitutional prohibition on “ex post facto” laws, for example, that the meaning of such term, not defined in the Constitution, requires some explanation, and that “the necessary explanation is derived from English common law well known to the Framers”:

The proscription against ex post facto laws “necessarily requires some explanation; for, naked and without explanation, it is unintelligible, and means nothing.” Calder v. Bull, 3 Dallas 386, 390 (1798) (Chase, J.). In Calder v. Bull, Justice Chase stated that the necessary explanation is derived from English common law well known to the Framers: “The expressions ‘ex post facto laws,’ are technical, they had been in use long before the Revolution, and had acquired an appropriate meaning, by Legislators, Lawyers, and Authors.” Id. at 391; see also id. at 389.44

Similarly, Chief Justice (and former President) Taft explained (in a Supreme Court decision dealing with the parameters of the offenses to which the “pardon” authority of the President extends) that the meaning of the language and phrases in the Constitution, when they are not specifically defined in that document, can only be discerned and interpreted by reference to the British common law in place at the time of the drafting of the Constitution. The Chief Justice, writing for a unanimous Court, found that the British common law was what the framers “were born and brought up in,” that the framers “thought and spoke in its vocabulary,” and was thus what the “statesmen and lawyers of the Convention” employed for the meaning of the terms in the Constitution “confident that they could be shortly and easily understood”: 42 Ex parte William Wells, 18 Howard (59 U.S.) 307, 311 (1855); Moore v. United States, 91 U.S. 270, 274 (1875); Smith v. Alabama, 124 U.S. 465, 478 (1888); United States v. Wong Kim Ark, 169 U.S. 649, 654-655 (1898); Ex parte Grossman, 267 U.S. 87, 108-109 (1925); Carmel v. Texas, 529 U.S. 513, 521 (2000). 43 Smith v. Alabama, 124 U.S. at 478. 44 Carmel v. Texas, 529 U.S. at 521 (Emphasis added).


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The language of the Constitution cannot be interpreted safely except by reference to the common law and to the British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of the thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.45

Justice Joseph Story explained in his celebrated work on the United States Constitution, Commentaries on the Constitution, that the British common law formed the “foundation” upon which American jurisprudence stands:

The universal principle (and the practice has conformed to it) has been that the common law is our birthright and inheritance, and that our ancestors brought hither with them upon their emigration all of it, which was applicable to their situation. The whole structure of our present jurisprudence stands upon the original foundations of the common law.46

The British common law was, in fact, regularly adopted or recognized as in force expressly in the constitutions, or in the early acts of the legislatures, of the original thirteen states after independence had been declared in July of 1776. The original Constitution of Delaware, for example, stated,

The common law of England, as-well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution, and the declaration of rights, &c., agreed to by this convention.47

The experience and the wording of the constitutions, or original statutes, adopted in most of the other original states were similar to that of Delaware quoted above.48 Those immediately involved in framing constitutions for the states in the 1770s, many of whom were also prominent in framing the Constitution for the United States in 1787, were thus not only intimately familiar

45 Ex parte Grossman, 267 U.S. 87, 108-109 (1925). See also Ex parte William Wells, 18 Howard (59 U.S.) 307, 311 (1855): “Prior to the revolution, the colonies, being in effect under the laws of England, were accustomed to the exercise of it in the various forms, as they may be found in the English law books. They were, of course, to be applied as occasions occurred, and they constituted a part of the jurisprudence of Anglo-America. At the time of the adoption of the constitution, American statesmen were conversant with the laws of England …. We must then give the word the same meaning as prevailed here and in England at the time it found a place in the constitution.” 46 Justice Joseph Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, Vol. I, § 157, p. 140 (1833). 47 Constitution of Delaware, 1776, Article 25. 48 See, for example, similar language in the Constitution of New Jersey, 1776, Article XXII; Constitution of Maryland, November 11, 1776, Declaration of Rights, paragraph III; Constitution of New York, April 20, 1777, Article XXXVl; Laws of Virginia, July 3, 1776, Ch. 38. Interestingly, the Constitution of Massachusetts, the colony in which the armed rebellion began, did not mention “England” or “Great Britain” in its adoption of “[a]ll the laws which have heretofore been adopted, used and approved in … Massachusetts, … and usually practiced on in the courts of law,” but which, as recognized in case law in Massachusetts, referred, of course, to the British common law. Constitution of Massachusetts, 1780, Pt. 2, C. 6, Art. 6; see, e.g., Com. v. Leach, 1 Mass. 59 (1804); Com. v. Knowlton, 2 Mass. 530 (1807); Pearce v. Atwood 13 Mass. 324 (1816); Sackett v. Sackett, 25 Mass. 309 (1829); Boynton v. Rees, 26 Mass. 528 (1830); Com. v. Churchill, 43 Mass. 123 (1840); Com. v. Rowe 257 Mass. 172 (1926); Com. v. Lopes 318 Mass. 453 (1945).


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with, but also expressly recognized the continued application of the British common law within this country.

Similar to the concept expressed in the original constitutions and enactments of the new states, Justice Story has also noted in a Supreme Court decision that we did not necessarily, however, adopt all of the British common law, but rather adapted it to our own situation.49 An analysis of the term “natural born” citizen which begins with the British common law meaning of the phrase might thus not necessarily end there, but must also take into consideration the unique American experience, and the application and interpretation of the underlying concepts involved by the courts in the United States. 50

Common Law and Persons Born “In” the Country There appears to be very little scholarly or legal dispute as to the British common law applicable in England and in the American colonies with respect to those born “on the soil.” As to those children born in the geographic boundaries of the country, even of alien parents, the Supreme Court of the United States in United States v. Wong Kim Ark, citing the British decision in Calvin’s Case reported by Lord Coke,51 found that such persons were, under British common law, considered “natural born” subjects (with minor exceptions for children born of foreign diplomatic personnel or of hostile military forces in occupation, that is, those not “under the jurisdiction” of that host country). This rule of law, noted the Court, applied to the American colonies at the time of the Declaration of Independence and, significantly, “in the United States afterwards, and continued to prevail under the Constitution ....”52

The premiere treatise on British law at the time of the drafting of the Constitution, which was well-known and well-used in the colonies, was Blackstone’s Commentaries on the Laws of England (1765). Blackstone explained that “[t]he first and most obvious division of the people is into aliens and natural-born subjects,”53 and that the “natural” allegiance due of “natural-born” subjects, as opposed to merely “local” allegiance of aliens and sojourners, “is such as is due from all men born within the king’s dominions immediately upon their birth.”54 Blackstone traced the 49 Van Ness v. Pacard, 27 U.S. [2 Peters] 137, 143-144 (1829). 50 One Court of Appeals has noted, for example, that the British common law with respect to “natural born” subjects as those born within the entire “realm” of the British Empire, was not necessarily imported wholly into American jurisprudence, as those born in the possessions of the United States, or in unincorporated territories, such as in the Philippines, would not be “natural born” citizens of the United States, as they had not been born “in” the geographic area of the United States. Rabang v. INS, 35 F.3d 1449, 1454, n.9 (9th Cir. 1994), cert. denied, sub nom. Sanidad v. INS, 515 U.S. 1130 (1995). 51 Calvin’s Case, 7 Rep. 1, 4b -6a, 18a, 18b (1608). 52 169 U.S. at 658. For a thorough history of the adoption of the English common law principles of citizenship, and the applications of those principles in the colonies, in the states, and then on a national basis in the United States, see Kettner, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608-1870 (U.N.C. Press 1978). 53 Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, Volume I, “Of the Rights of Persons,” 354 (1765). 54 Id. at 357-358: “Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth. For, immediately upon their birth, they are under the king’s protection .... Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered by any change of time, place or circumstance, nor by anything but the united concurrence of the legislature. An Englishmen who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now. ... Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king’s dominion and protection: and it ceases the instant such stranger transfers himself from this kingdom to another. Natural allegiance is therefore perpetual, and local temporary only ....”


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development of the concept of “natural-born” allegiance to the reciprocal duties of protection and allegiance (fealty, or “ligamen” (tie)), that developed concerning land ownership and use under the feudal system, eventually understood to encompass the reciprocal protection/allegiance of all English subjects with respect to the crown.55

In 1844, in a probate case in New York State, Assistant Vice-Chancellor Lewis Sandford authored a detailed and scholarly opinion, later cited and relied upon by numerous federal courts and legal treatises, on the legal history of natural born citizenship status in the United States.56 The opinion in Lynch v. Clarke found that one of the litigants, Julia Lynch, who was born in New York to alien parents who were merely on a “temporary sojourn” in this country, was a natural born U.S. citizen who had the legal capacity to inherit. Sandford concluded that all persons born in the United States, even of alien parents who were only here temporarily, had “natural born” citizenship status under English common law, carried forward in the laws in all of the original thirteen states after independence, and then under the laws and constitutional provisions of the United States:

My conclusion upon the facts proved is, that Julia Lynch was born in this state of alien parents, during their temporary sojourn. That they came here as an experiment, without any settled intention of abandoning their native country, or of making the United States their permanent home....

It is indisputable that by the rule of the common law of England, if applied to these facts, Julia Lynch was a natural born citizen of the United States. And this rule was established and inflexible in the common law, long anterior to the first settlement of the United States ... By the common law, all persons born within the ligeance of the crown of England, were natural born subjects, without reference to the status or condition of their parents....

* * *

At the formation of our present national government, the common law prevailed as a system of jurisprudence, in all the thirteen states which then constituted the nation....

I need not dwell more at large upon this unquestionable proposition....

As the common law prevailed in all the colonies, and was the basis of their laws and jurisprudence, it follows that all persons born in the colonies while in the ligeance of the King of England, became subjects of the Crown of England; unless it be made to appear that the rule of the common law was incompatible with the situation with the colonists, or unsuited to their circumstances; or that it was altered by legislation.

Instead of abridging the rule, all colonial legislation which has come under my observation, proceeded on the assumption that it was the settled law of the land.

* * *

It may then be safely assumed, that at the Declaration of Independence, by the law of each and all of the thirteen states, a child born within their territory and ligeance respectively, became thereby a citizen of the state of which he was a native. This continued unchanged to

55 Id. at 354-357. 56 Lynch v. Clarke, 3 N.Y. Leg. Obs. 236 (1 Sand. ch. 583) (1844).


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the time when our National Constitution went into full operation. There is no evidence of any alteration of the rule of any of the states during the period that intervened.... 57

The Supreme Court of the United States, in its landmark opinion on birthright citizenship authored by Justice Gray in United States v. Wong Kim Ark, citing both the common law and numerous legal precedents in the United States, explained in 1898 that a child born of alien parents within the country and subject to its jurisdiction (that is, whose parents are not diplomatic personnel representing a foreign nation or troops in hostile occupation) is considered a “natural born” citizen (in the United States) or subject (in England),58 as that term has been used over the centuries in England and the United States:

It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction, of the English Sovereign; and therefore every child born in England of alien parents was a natural born subject, unless the child of an ambassador or other diplomatic agent of a foreign State, or of an alien enemy in hostile occupation of the place where the child was born.

The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.59

The Court noted several judicial precedents finding that the clear common law from England, as well as statutory law pertaining to such things as inheritance (which prevailed in the states in this country unless expressly repealed), was that “persons born within the realm, although children of alien parents, were called ‘natural-born subjects.’”60 Citing an earlier precedent, the Court noted Justice Story’s opinion that the principles of common law “treated it as unquestionable that by that law a child born in England of alien parents was a natural born subject.”61 The Court referenced with approval an earlier decision of a federal circuit court, written by Supreme Court Justice Swayne sitting on circuit, explaining that “the rule of the common law” of England, and now “of this country, as well as in England,” is that “all persons born in the allegiance of the United States are natural born citizens.”62

57 Id. at 238, 242, 243-244. The opinion then concluded that the Constitution, in using the phrase “natural born citizen” was a “direct recognition of the common law principle ....” Id. at 246. 58 As to the use of “subject” or “citizen” with respect to “natural born,” the Supreme Court of the United States referenced a court decision in North Carolina, explaining that “The term ‘citizen,’ as understood in our law, is precisely analogous to the term ‘subject’ in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people; and he who before was a ‘subject of the king’ is now ‘a citizen of the State.” 169 U.S. at 663-664, citing State v. Manuel, (1838) 4 Dev. & Bat. 20, 24-26. See also United States v. Villato, 2 U.S. (Dall.) 370, 371 (1797); Hennessey v. Richardson Drug Company,189 U.S. 25, 34-35 (1903). But see, however, limitations as to “subject” of the realm, and those born in United States’ possessions, in United States. Rabang v. INS, 35 F.3d at 1454, n. 9. 59 169 U.S. at 658. Emphasis added 60 169 U.S. at 661, citing an English statute of 1700, and referencing cases including The Charming Betsey, 2 Cranch (6 U.S.) 64 (1804); and Inglis v. Sailor’s Snug Harbor 3 Pet. (28 U.S.) 99 (1830). 61 169 U.S. at 661-662, discussing McCreery v. Somerville, 9 Wheat. 354 (1824), where, the court noted, that such rule of natural born citizenship by birth within the country “of course extended to the Colonies, and, not having been repealed in Maryland, was in force there.” 62 169 U.S. at 662-663 (emphasis added), citing United States v. Rhodes, 27 Fed. Case 785 (No. 16151) (C.C. Ky. 1866).


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The Supreme Court in Wong Kim Ark thus concluded that the Fourteenth Amendment “affirms” the common law rule of “citizenship by birth within the territory,” even if one is born of alien parents in this country, and approved of the characterization of the children of such resident aliens as “natural born” citizens of the United States.63 The Fourteenth Amendment further requires that the person born “in” the United States also be “subject to the jurisdiction” of the United States which, as noted, is interpreted to mean that such person is subject to the laws of this country, such that jurisdiction may be exercised over them, and thus would exclude children of foreign diplomats here officially, and those of foreign troops in hostile occupation.64

Being born within the geographic boundaries of the United States, however, unlike the meaning under British common law, does not necessarily include being born in the unincorporated “territories,” possessions, or protectorates of the United States, unless such citizenship “at birth” is otherwise provided by statute.65 A U.S. Court of Appeals, relying on the “Insular cases,” found that birth in an unincorporated territory or possession of the United States, such as the Philippines, did not grant Fourteenth Amendment or common law citizenship as being born “in” the geographic area of the “United States,” even though under the British common law one may have been a natural born “subject” of the crown when born within the far-flung dominions ruled by the British Empire.66

Common Law and Persons Born Abroad to Citizen-Parents In United States v. Wong Kim Ark, the Supreme Court, in examining an immigration question not dealing specifically with the meaning of the presidential eligibility requirement, provided a lengthy examination of the English common law of citizenship at the time of the drafting of the Constitution, and whether such citizenship was obtained by the place of birth (jus soli) only, or also by descent (jus sanguinis). As noted above, the Court found that the common law of England was that of jus soli, that is, derived from the feudal notion of the reciprocal responsibilities of allegiance and protection of an individual that was established in England by the place of that person’s birth; and that the latter principle of citizenship by descent (because of the citizenship or nationality of one’s father—jus sanguinis) was, as a general matter, the law in England by statute, and thus not necessarily as part of the “common law,” even though there existed a long-standing 63 169 U.S. at 693. 64 In re Look Tin Sing, 21 F. 905, 906 (Cal. Cir. 1884); United States v. Wong Kim Ark, 169 U.S. at 687, 693. See discussion in more recent case of Plyer v. Doe, 457 U.S. 202, 211-215 (1981), finding that for due process, as well as equal protection purposes in the Fourteenth Amendment, that one “within the jurisdiction” of a state is one “subject to its laws”: “In appellants’ view, persons who have entered the United States illegally are not ‘within the jurisdiction’ of a State even if they are present within a State’s boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase ‘within its jurisdiction’” (457 U.S. at 211). Rather, the Court found that “the protections of the Fourteenth Amendment extends to anyone … who is subject to the laws of a State ….” (457 U.S. 215). 65 See, for example, 8 U.S.C. § 1402 (Puerto Rico, born on or after April 11, 1899), § 1403 (Canal Zone or Republic of Panama, born on or after February 26, 1904), § 1404 (Alaska, born on or after March 30, 1867), § 1405 (Hawaii, born on or after April 30, 1900). 66 Rabang v. INS, 35 F.3d 1449, 1453 (9th Cir. 1994), cert. denied, sub nom. Sanidad v. INS, 515 U.S. 1130 (1995): “[T]he Citizenship Clause has an express territorial limitation which prevents its extension to every place over which the government exercises its sovereignty.” See also, id. at 1454, n.9, where the Court of Appeals opined that “wholesale importation of British common law on ‘subject’ status to interpret the meaning of the Citizenship Clause [of the Fourteenth Amendment] is inadvisable because of possible differences between ‘subjects’ and ‘citizens,’” and thus those born in U.S. unincorporated territories or possessions should not necessarily be considered as being born “in” the United States.


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statutory recognition (since 1350) of the rights of “natural-born subjects” who were born abroad to British parents or a British father.67

As pointed out by the Supreme Court in Wong Kim Ark, however, there was not necessarily unanimity in legal scholarship concerning a narrow reading of the British common law with regard to the children of subjects/citizens born abroad.68 Some legal scholars in England and in the United States have argued that the long-standing statutory and parliamentary recognition of children born abroad to English subjects as “natural-born” was merely “declaratory” of the existing common law principles and understandings in England, although this was disputed in dicta by the Supreme Court in Wong Kim Ark:

It has sometimes been suggested that this general provision of the statute of 25 Edw. III. [1350] was declaratory of the common law. See Bacon, arguendo, in Calvin’s Case, 2 How. St. Tr. 585; Westlake and Pollock, arguendo, in De Geer v. Stone, 22 Ch. Div. 243, 247; 2 Kent, Comm. 50, 53; Lynch v. Clarke, 1 Sandf. Ch. 583, 659, 660; Ludlam v. Ludlam, 26 N. Y. 536. But all suggestions to that effect seem to have been derived, immediately or ultimately, from one or the other of these two sources: The one, the Year Book of 1 Rich. III. (1483) fol. 4, pl. 7, reporting a saying of Hussey, C. J., “that he who is born beyond sea, and his father and mother are English, their issue inherit by the common law, but the statute makes clear,” etc., - which, at best, was but obiter dictum, for the chief justice appears to have finally rested his opinion on the statute. The other, a note added to the edition of 1688 of Dyer’s Reports, 224a, stating that at Trinity term 7 Edw. III. Rot. 2 B. R., it was adjudged that children of subjects born beyond the sea in the service of the king were inheritable, - which has been shown, by a search of the roll in the king’s bench so referred to, to be a mistake, inasmuch as the child there in question did not appear to have been born beyond sea, but only to be living abroad.69

The position of the dissenting Justices in Wong Kim Ark was characterized and discussed by the Court in the later case of Weedin v. Chin Bow: “The attitude of Chief Justice Fuller and Mr. Justice Harlan was, that at common law the children of our citizens born abroad were always natural-born citizens from the standpoint of this Government....”70 A detailed law review article in 1921 by the assistant solicitor of the Department of State noted that a number of legal scholars and historians contend that the English common law specifically included jus sanguinis, as well as jus soli, and noted that the “question has been a subject of controversy for six centuries or more….”71

Other legal scholars have contended that long-standing and commonly accepted principles incorporated into English law by statute over several centuries, even if they did not merely 67 169 U.S. 655- 671. See also Blackstone, at 354-361. 68 It has also been argued, even on the basis of the incorporation of only a very narrow and technical concept of the early English common law rule of jus soli into the Constitution, that the common law understanding, meaning, and usage of the term “natural born” subject/citizen would include, at the very least, the children of U.S. citizens born abroad when one parent is abroad because of service in an official capacity on behalf of, and under the direction and control of, the United States Government. This argument would include both diplomatic personnel as well as military forces who were not in hostile occupation, but were invited into, and stationed, in the foreign country. See Lohman, 36 GONZAGA LAW REVIEW, at 351-352, 365-369; Wong Kim Ark, 169 U.S. at 686, citing Chief Justice Marshall, in The Schooner Exchange v. McFaddon, 11 U.S. [7 Cranch] 116 (1812). 69 169 U.S. at 669- 670. 70 274 U.S. 657, 670 (1926). 71 Flourny, Richard W. (Assistant Solicitor, Department of State), Dual Nationality and Election, 30 YALE LAW JOURNAL 545, 548 (1921).


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“declare” already-existing English common law, actually modified the corpus of the common law to incorporate such principles, and that this body of law was the one known to the framers, such that the provisions of the Constitution must be interpreted in that light. Charles Gordon, who was then general counsel for the United States Immigration and Naturalization Service, explained in 1968 that in addition to recognizing birthright citizenship as to the place of birth (jus soli), “the consistent practice over several centuries, in England and the United States, [was] to recognize citizenship status by descent.”72 Gordon thus concluded that “[t]he common law, as it had developed through the years, recognized a combination of the jus soli and the jus sanguinis,” 73 and that the English common law adopted by the United States had been expanded by the long-standing statutory inclusions over the centuries in England:

[T]here were doubts concerning the applicability of the jus sanguinis under the early common law. But those doubts were eliminated by statutes enacted in England before the American Revolution, which became part of the body of law followed in England and passed on to this country. It can be argued ... that this total corpus was the common law which this country inherited, and that it persevered unless specifically modified.74

That the United States was not confined to only the narrow common law of England in our usages and applications, was noted by the Supreme Court in an opinion authored by Justice Story in 1829:

The common law of England is not to be taken, in all respects, to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted, only that portion which was applicable to their situation.75

It was, in fact, common in the states after independence, upon the adoption of their constitutions and statutes, to incorporate both the common law of England, as well as the statutory laws adopted by Parliament and applicable in the colonies up until a particular date.76 There is thus some argument and indication that it was common for a “modified” English common law—modified by long-standing provisions of English statutory law applicable in the colonies—to be among the traditions and bodies of law incorporated into the laws, applications, usages, and interpretations in the beginning of our nation.

Common Understanding in 18th Century of the Term “Natural Born” Citizen In addition to examining the common law meaning of the term “natural born” as it related to citizenship, there are other interpretive analyses that might be employed in an attempt to understand the “meaning to the framers” of the term “natural born” citizen when the term was

72 Gordon, Who Can Be President of the United States: The Unresolved Enigma, 28 MD. L. REV. 1, at 12, 18 (1968). 73 Id. at 18. 74 Id. at 12. 75 Van Ness v. Pacard, 27 U.S. [2 Peters] 137, 143-144 (1829). 76 Constitution of Delaware, 1776, Article 25; Constitution of New Jersey, 1776, Article XXII; Constitution of Maryland, November 11, 1776, Declaration of Rights, paragraph III; Constitution of New York, April 20, 1777, Article XXXVl; Laws of Virginia, July 3, 1776, Ch. 38; Constitution of Massachusetts, 1780, Pt. 2, C. 6, Art. 6.


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adopted in the Constitution in 1787.77 If, as noted by the Supreme Court in an opinion authored by Justice Story, the “common law of England is not to be taken, in all respects, to be that of America,” 78 there may be accorded some significance to an analysis of what the term “natural born” citizen was commonly understood to mean in the American colonies at the time of the revolution and framing of the Constitution.

It is, of course, always a somewhat speculative exercise to attempt to discern the “common understanding” of a group of individuals who may be geographically, professionally, and politically diverse, particularly during a period many years removed from the current time.79 The fact that no discussion appears in the notes of the Federal Convention of 1787 on the presidential eligibility clause, and the fact that the actual debates and discussions in the Convention were held in secret with no official journal of the debates being kept (other than for recording votes) highlight the problems in such speculation. That being said, however, one might argue that there existed what might be called a “common” or “general understanding,” or at least common “usage” of the term “natural born,” as it related to those who were considered “natural born” subjects of England in the American colonies at the time of independence, and “natural born” citizens at the time of the adoption of the Constitution. The “state of the law” in colonial America concerning who was a “natural born” subject of England under English laws, both common law as well as statutory laws, was certainly known to the framers since, as noted by the Supreme Court, “These statutes applied to the colonies before the War of Independence.”80

From examination of historical documents, it appears that the term “natural born” as it related to citizenship under English law and jurisprudence was a term widely known and used in the American colonies in the 1700’s, and was employed in the context and understanding of British common law as well as British statutory law. For example, more than a decade before John Jay had employed the term in his “hint” to General Washington at the Convention of 1787, the First Continental Congress of the American colonies, meeting in Philadelphia beginning in September of 1774, adopted a resolution asserting that the common law of England was fully applicable to the colonies in America, as were such statutory laws of England as would be relevant to their circumstances, and expressly included in the resolution an assertion of the rights of their

77 One commentator has averred that whether or not the common law was modified by statute is irrelevant; the only relevant matter is what the “common understanding” of the meaning of “natural born” was at the time of the Convention of 1787, regardless of whether that meaning was based solely on British common law or partly on adopted statutes from England. Seligman, A Brief for Governor Romney’s Eligibility for President, 113 CONG. REC. 35019, 35020 (1967). 78 Van Ness v. Pacard, 27 U.S. at 143-144. 79 Jack N. Rakove, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION, p. 6: “Both the framing of the Constitution in 1787 and its ratification by the states involved processes of collective decision-making whose outcomes necessarily reflected a bewildering array of intentions and expectations, hopes and fears, genuine compromises and agreements to disagree. The discussions of both stages of this process consisted largely of highly problematic predictions of the consequences of particular decisions. In this context, it is not immediately apparent how the historian goes about divining the true intentions and understandings of the roughly two thousand actors who served in the various conventions that framed and ratified the Constitution, much less the larger electorate that they claimed to represent. … For all these reasons, then, the ideal of “unbiased” history remains an elusive goal, while the notion that the Constitution had some fixed and well-known meaning at the moment of its adoption dissolves into a mirage.” See also Leonard W. Levy, ORIGINAL INTENT AND THE FRAMERS’ CONSTITUTION, ix (1988): “For several decades after the ratification of the Constitution the fading memories of those who had attended the Philadelphia Constitutional Convention supplied the main evidence of the Framers’ intent. Even when those memories were fresh, the framers disagreed vehemently about what the Convention had meant or intended ....” See also, id. at pp. 1-29. 80 Weedin v. Chin Bow, 274 U.S. at 660.


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ancestors to be considered “natural-born subjects within the realms of England.” As noted in Elliot’s compilation and analysis of documents related to independence,

On the same day [14th of October, 1774], Congress unanimously resolved, “that the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law.” They further resolved, “that they were entitled to the benefit of such of the English statutes as existed at the time of their colonization, and which they have, by experience, respectively found to be applicable to their several and local circumstances.” They also resolved, that their ancestors, at the time of their immigration, were “entitled to all the rights, liberties, and immunities, of free and natural-born subjects within the realms of England.”81

It is thus clear that the delegates to the First Continental Congress in 1774, among whom were several framers of the Constitution at the Federal Convention of 1787, as well as other notable “founding fathers” (including John Jay),82 were already familiar with and employed the term “natural born” in the context of and within the understanding of British common law and statutory law concepts of the rights and privileges of citizenship.

Of relevance to any meaning and “common understanding” of the term “natural born” within the American colonies and at the time of the drafting of the Constitution is the legal treatise on the laws of England referred to as “Blackstone,” for its author William Blackstone. Published in 1765, this treatise was not only available, but was widely known to the framers at the time of the drafting of the Constitution.83 As noted by the Supreme Court of the United States, “Blackstone’s Commentaries was widely circulated in the Colonies ...,” 84 and that “undoubtedly the framers of the Constitution were familiar with it.”85 As discussed in the earlier section of this report on the common law, Blackstone explained that “natural born” subjects in England and the American colonies included all those born “in” the lands under British sovereignty. Concerning specifically the issue of children born abroad of English subjects, Blackstone explains clearly that such children are then (in 1765) considered under the law of England as “natural born” subjects, and have been considered as such for most purposes since at least the time of Edward III (1350),

81 Jonathan Elliot, THE DEBATES IN THE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF THE FEDERAL CONSTITUTION [ELLIOT’S DEBATES], Vol. I, “Gradual Approaches Towards Independence,” at 44 (2d Ed. 1836). Emphasis in original. 82 Delegates to that First Continental Congress in 1774 included such framers present at the Convention of 1787 as Roger Sherman of Connecticut, William Livingstone of New Jersey, Thomas Mifflin of Pennsylvania, George Read of Delaware, George Washington of Virginia, and John Rutledge of South Carolina, as well as other notable “founding fathers,” including John Adams and Samuel Adams of Massachusetts, John Jay of New York, and Patrick Henry and Richard Henry Lee of Virginia. 83 One noted historian of the American colonial era has commented on the “deep legalism” of society in colonial America “where William Blackstone’s Commentaries on the Laws of England was selling as well as it was in England.” Jack Rackove, REVOLUTIONARIES, at 68 (2010). See also Schick v. United States, 195 U.S. 65, 69 (1904), discussing Blackstone’s Commentaries: “... it has been said that more copies of the work had been sold in this country than in England ....” 84 Powell v. McCormack, 395 U.S. 486, 538 (1969). “Sir William Blackstone’s Commentaries on the Laws of England (1765-1769) is the most important legal treatise ever written in the English language. It was the dominant lawbook in England and America in the century after its publication and played a unique role in the development of the fledgling American legal system.” William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, [hereinafter Blackstone], Volume I, Of the Rights of Persons (1765) (Introduction at iii). 85 Schick v. United States, 195 U.S. at 69.


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because of the development of statutory law in England to “encourage also foreign commerce.” As stated by Blackstone in his 1765 treatise,

[A]ll children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.86

The “commonly understood” meaning of the term “natural born” in the United States at the time of the drafting of the Constitution might thus be broader than the early, strict English “common law” meaning of that term.87 As noted by Charles Gordon, former Chief Counsel of the Immigration and Naturalization Service, whether the body of English law in the 1770s was from early common law, from statutory law, or from the common law modified over the years by statutory law, these provisions “were part of the corpus of the English law in existence at the time of the Revolution, which was substantially recognized and adopted by our forefathers.”88 This common usage and popular understanding to the framers of the term “natural born” subject (as employed in England), and the term’s apparent evolution and broadening of meaning through statutory law, has thus led several other legal commentators and historians to conclude: “The constitutional Framers had a broad view of the term ‘natural-born’ and considered all foreign- born children of American citizen parents eligible for the Office of the Presidency”89; or, as stated by another: “[T]he delegates meant to apply the evolved, broader common law meaning of the term when they included it in the presidential qualifications clause.”90

Presidential historian Michael Nelson has also averred that the term appeared to have a common meaning at the time of the drafting of the Constitution which involved within its concept both the common law definition and mode of acquisition of citizenship (through jus soli), as well as the common understanding of the long-standing broadening of such term by the operation of English statutory law to include those subjects who may have traveled abroad for purposes of commerce, or otherwise. As noted by Nelson (and pointed out by others), a more restrictive meaning to include only those born within the boundaries of the United States would mean that John Jay, who

86 Id. at 361: “When I say that an alien is one who is born out of the king’s dominions, or allegiance, this also must be understood with some restrictions. ... [T]he children of the king’s ambassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also .... To encourage also foreign commerce, it was enacted by statute 25 Edw. III. ft. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king ... might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still further taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.” 87 As noted in the preceding section of this report, legal scholars in England were not completely unanimous about English common law during this period, as some had averred that it included as “natural born” subjects not only jus soli, but also those born abroad of English parents, and/or that the statute of 1350 in the reign of Edward III was merely a recitation or “declaration” of the common law, which might also have lead to a common or popular perception (or even a commonly held misunderstanding) of the meaning of the term in the U.S. as including the issue of citizens born in foreign lands even in the narrower concept of the “common law.” See also Flourny, Richard W. (Assistant Solicitor, Department of State), Dual Nationality and Election, 30 YALE LAW JOURNAL 545, 548 (1921). 88 Gordon, 28 MD. L. REV., at 18. 89 Lohman, 36 GONZAGA LAW REVIEW, at 369. 90 Nelson, at 396. See also 7 Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr, IMMIGRATION LAW AND PROCEDURE, § 92.03[1][b] (rev. ed. 2000); Pryor, 97 YALE L.J. at 882 (1988); Gordon, 28 MD. L. REV at 5-7.


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may have recommended the precise term to the Convention, would have intended to exclude from eligibility his own children who were born in Spain and France while Jay was representing the United States abroad:

The provision for “natural born Citizen” probably was aimed at immigrants, although the term is so unusual as to be vague.... [b]ut [it] had deep roots in British common law. In medieval times it had embodied the doctrine of jus soli: a natural born citizen was one born within the realm (on the soil, so to speak). But with increased commerce and travel, Parliament, starting in 1350, seemed to expand the definition of natural born to incorporate the doctrine of jus sanguinis. Now babies born of British citizens abroad or at sea were included as well. One can presume only that Jay and the delegates meant to apply the evolved, broader common law meaning of the term when they included it in the presidential qualifications clause. Certainly Jay did not mean to bar his own children born in Spain and France while he was on diplomatic assignments, from legal eligibility to the presidency.91

With respect to the common or general meaning of the term “natural born” to the framers of the Constitution in the context of those born abroad to U.S. citizens, it may be significant to note that the first Congress, under its express constitutional authority “to establish an uniform Rule of Naturalization,”92 enacted the Naturalization Act of 1790.93 The first of several such acts, this 1790 statute stated that

[T]he children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States....94

This early congressional act provides some argument that the term “natural born” citizen was seen to include more than merely the “native born,” that is, those born in the country (in accordance with the common law principle of jus soli), but also to include the long-standing English statutory recognition of citizenship by descent through one’s father when an individual is born abroad, that is, all of those who are citizens “at birth” or “by birth.” The significance of such a statute passed by the first Congress was, of course, the fact that many of the framers of the Constitution were Members of that first Congress, as well as the fact that the first Congress’s understanding of the meaning of the terms of the Constitution was most contemporaneous in time with the document’s adoption. One author has noted that of the “Committee of Eleven,” which first proposed to the Convention of 1787 the eligibility requirement of being a “natural born” citizen, 8 of the 11 committee members were in that first Congress, and none stated objections to or disagreement with the characterization of the term “natural born” by statute by the Congress.95 The Supreme Court has expressly noted the weight of authority of early actions of the first Congress in explicating portions of the Constitution because of the make-up of that Congress, and

91 Michael Nelson, Constitutional Qualifications for President, PRESIDENTIAL STUDIES QUARTERLY, Vol. XVII, No. 2, at 396 (Winter 1987), citing Gordon, Who Can Be President? 92 U.S. CONST. art. I, § 8, cl. 4. 93 Act of March 26, 1790, ch. 3, 1 Stat. 103, 104. 94 The 1790 statute was repealed and superseded by a 1795 naturalization statute which omitted the phrase “natural born.” Act of Jan. 29, 1795, ch. 20, 1 Stat. 414, 415. There is no legislative history indicating the reason for the deletion of that term; however, in that statute the phrase “shall be considered as citizens” referred to the status of minor children derivatively naturalized upon the naturalization of their parents, who are not “natural born,” as well as to the children born abroad to U.S. citizens, so it is possible that the deletion is merely a stylistic/grammatical decision. 95 Lohman, 36 GONZAGA LAW REVIEW at 371.


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its proximity in time to the Convention. As noted by the Court, an act “passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, ... is contemporaneous and weighty evidence of its true meaning.”96

One of the more noted political and constitutional scholars on the American presidency, Edward S. Corwin, has explained that “natural born” citizens eligible to be President clearly include all of those born “on the soil” of the United States and subject to its jurisdiction, under the common law principles of jus soli applicable in the United States, but also would appear to include those born abroad of U.S. citizens under the principle of jus sanguinis, as adopted by Congress by statute. Corwin noted that Congress has the authority as the legislative body of a sovereign nation “to determine who shall and shall not be admitted to the body politic”:

But who are “natural-born citizens”? By the so-called jus soli, which comes from the common law, the term is confined to persons born on the soil of a country; and this rule is recognized by the opening clause of the Fourteenth Amendment, which declares to be citizens of the United States “all persons born or naturalized within the United States and subject to the jurisdiction thereof.” On the other hand, by the so-called jus sanguinis, which underlay early Germanic law and today prevails on the continent of Europe, nationality is based on parentage, a principle recognized by the first Congress under the Constitution in the following words:

The children of citizens of the United States that may be born beyond the sea, or outside of the limits of the United States, shall be considered as natural-born citizens of the United States; provided that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.

By succeeding legislation the general clause of this provision has been continued in force to this day. The question arises, whence did Congress obtain the power to enact such a measure? By the Constitution the Congress is authorized to pass “an uniform rule of naturalization,” that is, a uniform rule whereby aliens may be admitted to citizenship; while the provision under discussion purports to recognize a certain category of persons as citizens from an because of birth. The provision must undoubtedly be referred to the proposition that, as the legislative body of a nation sovereign at international law, Congress is entitled to determine who shall and who shall not be admitted to the body politic.

Should, then, the American people ever choose for President a person born abroad of American parents, it is highly improbable that any other constitutional agency would venture to challenge their decision ....97

It may be noted that some have argued that the relevant common meaning of natural born citizen that was prevalent in 18th century America should not be the one that was actually applicable in the American colonies during that time from British statutory and common law, and which was adopted specifically by the states after independence in 1776 (and which, as noted by Justice Story, formed the “foundation” for American jurisprudence), but rather should be recognized as

96 Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297 (1888); Marsh v. Chambers, 463 U.S. 783, 788-791 (1983). See also Michel v. Anderson, 14 F.3d 623, 631 (D.C. Cir. 1994): “Although the actions of the early congresses are not a perfect indicator of the Framers’ intent, those actions provide some indications of the views held by the Framers, given the propinquity of the congresses and the framing and the presence of a number of Framers in those congresses.” 97 Edward S. Corwin, THE PRESIDENT, OFFICE AND POWERS, 1787-1984, at 38-39 (5th Revised ed. by Bland, Hindson, and Peltason, 1984). (Footnotes omitted).


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one derived from what has been described as a “philosophical treatise”98 on the law of nations by a Swiss legal philosopher in the mid-1700s.99 This particular treatise, however, in the editions available at the time of the drafting of the U.S. Constitution, did not actually use, either in the original French or in English interpretations at that time, the specific term “natural born citizens.”100 It was not until after the adoption of the Constitution in the United States did a translator interpret the French in Emmerich de Vattel’s Law of Nations to include, in English, the term “natural born citizens” for the first time, and thus that particular interpretation and creative translation of the French, to which the Vattel enthusiasts cite, could not possibly have influenced the framing of the Constitution in 1787.101

Furthermore, and on a more basic level, the influence of the work of Vattel on the framers in employing the term “natural born” in relation to domestic citizenship within the Constitution is highly speculative at best, is without any direct historical evidence, and is contrary to the mainstream principles of constitutional interpretation and analysis within American jurisprudence. Although it appears that there is one single reference by one delegate at the Federal Convention of 1787 to Vattel (in reference to several works of different authors to support an argument for equal voting representation of the states in the proposed Congress),102 there is no other reference to the work in the entire notes of any of the framers published on the proceedings of the Federal Convention of 1787,103 and specifically there is no reference or discussion of the work at all in relation to citizenship at the Convention, in the Federalist Papers,104 or in any of the state ratifying conventions.105

98 Craig v. United States, 340 Fed. Appx. 471, 473 (10th Cir. Okla. 2009), cert. denied, 130 S.Ct. 141 (2009). 99 Emmerich de Vattel, THE LAW OF NATIONS, OR PRINCIPLES OF THE LAW OF NATURE, APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS AND SOVEREIGNS (London 1760)[hereinafter THE LAW OF NATIONS]. The 1760 Volume is an English translation of the original French, E. De Vattel, DROIT DES GENS: OU, PRINCIPLES DE LA LOI NATURELLE, APPLIQUES A LA CONDUCT & AUX AFFAIRES DES NATIONS & DES SOUVERAINS (1758)[hereinafter DROIT DES GENS]. 100 In the original French, the sentence reads: “Les naturels ou indigenes font ceux qui font nés dans le pays, de Parens Citoyens.” (DROIT DES GENS, supra at Ch. XIX, p. 111). In the English translation available at the time of the framing of the Constitution, translated in English in 1760 and in 1787, the terms “naturels or indigenes” were simply interpreted as “natives or indigenes”: “The natives, or indigenes, are those born in the country of parents who are citizens.” THE LAW OF NATIONS, supra at Vol. I, Book 1, Ch. XIX, § 212, at p. 92 (1760), and at p. 166 of the 1787 edition. The English phrase “natural born citizen” in early French translations of the U.S. Constitution’s Article II, § 1, cl. 5, however, was interpreted as either “citoyen-né” ([a “born citizen”] John Stevens or Warren Livingston, EXAMEN DU GOUVERNEMENT D’ANGLETERRE, COMPARE AUX CONSTITUTIONS DES ÉTAT-UNIS,” at 257 (Paris 1789)), or “citoyen né dans les États-Unis,” ([a “citizen born in the United States”], L.-P. Conseil, MÉLANGES POLITIQUES ET PHILOSPHIQUES, “Constitution Des États-Unis,” at 160 (Paris 1833), and M. Du Ponceau, EXPOSÉ SOMMAIRE DE LA CONSTITUTION DES ÉTATS-UNIS D’AMÉRIQUE, at 45 (Paris 1837)), or in more recent French translations, “citoyen de naissance” (“citizen at birth”). None of these French expressions for the English term “natural born citizen” were used by Vattel. 101 Compare the 1760 London edition of Vattel’s Law of Nations, to the 1797 English translation (London 1797), at Book 1, Ch. XIX, p. 101 (Lib. of Congress No. JX2414 .E5 1797). 102 I Farrand at 437-438 (Mr. Martin, of Maryland). 103 Farrand’s work, The Records of the Federal Convention of 1787, includes the personal notes of the following framers: Robert Yates of New York, James Madison of Virginia, Rufus King of Massachusetts, James McHenry of Maryland, William Pierce of Georgia, William Paterson of New Jersey, Alexander Hamilton of New York, and George Mason of Virginia, as well as the Journal kept by the Secretary of the Convention, Major William Jackson. I Farrand, supra at xi-xxii. 104 THE FEDERALIST: A COLLECTION OF ESSAYS, WRITTEN IN FAVOUR OF THE NEW CONSTITUTION, AS AGREED UPON BY THE FEDERAL CONVENTION, SEPTEMBER 17, 1787 (New York 1788). 105 There were only two apparent references in all of the state ratifying debates to Vattel: one by a delegate in South Carolina in relation to a nation’s duty to honor treaties (4 ELLIOT’S DEBATES at 278), and one in Pennsylvania mentioned with other “political writers” to support the notion that not all of the rights of the people of a nation could be (continued...)


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It would appear to be somewhat fanciful to contend that in employing terms in the U.S. Constitution the framers would disregard the specific and express meaning of those precise terms in British common law, the law in the American colonies, and subsequently in all of the states in the United States after independence, in favor of secretly using, without comment or explanation, a contrary, non-existent English translation of a phrase in a French-language treatise on international law. In a state case cited with approval by the U.S. Supreme Court, an extensive legal analysis of the question of natural born citizenship under the law of the United States by Assistant Vice Chancellor Sandford, in New York in 1844, found that the laws in all of the American colonies, and then in all of the states after independence, followed the English common law principles of jus soli, that is, that birth in the territory governed citizenship at birth, regardless of the nationality or citizenship of one’s parents.106 Sandford found that it would be “inconceivable” that the framers, in drafting the Constitution, would abandon without explicit comment or explanation in the document, the existing law in all of the colonies, and then in all of the states, of who were natural born citizens in favor of an “international” or “natural” law theory of citizenship by “descent” (through one’s father), an argument pressed by one of the litigants relying, in part, on Vattel. Addressing specifically the question of the use of the term “natural born citizen” in the federal Constitution as one of the qualifications for President, Vice Chancellor Sandford found the following:

It is a necessary consequence, from what I have stated that the law which had prevailed on this subject, in all the states, became the governing principle or common law of the United States. Those states were the constituent parts of the United States, and when the union was formed, and further state regulation on the point terminated, it follows, in the absence of a declaration to the contrary, that the principle that prevailed and was the law on such point in all the states, became immediately the governing principle and rule of law thereon in the nation formed by such union.... The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section that defines the qualification of the President. “No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution shall be eligible to the office of President,” &c. The only standard which then existed, of natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor that by the rule of common law, in force when the constitution was adopted, he is a citizen.

Moreover, the absence of any avowal or expression in the constitution of a design to affect the existing law of the country on this subject, is conclusive against the existence of such design. It is inconceivable that the representatives of the thirteen sovereign states, assembled in convention for the purpose of framing a confederation and union for national purposes, should have intended to subvert the long-established rule of law governing their constituents on a question of such great moment to them all, without solemnly providing for the change

(...continued) “completely enumerated” in a constitution. 2 ELLIOT’S DEBATES at 453-454. 106 Lynch v. Clarke, 3 N.Y. Leg. Obs. 236, 242, 244 (1 Sand. ch. 583) (1844). This case was cited with approval by the Supreme Court in United States v. Wong Kim Ark, at 664, 674, and also by the U.S. Court of Appeals in In re Look Tin Sing, 21 F. 905, 909 (Cal. Cir. 1884).


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in the constitution; still more that they should have come to that conclusion without even once declaring their object.107

The treatise in question by Emmerich de Vattel was a work concerning the “law of nations,” which we would now classify generally as “international law.” However, the concept of citizenship within a particular country is one governed not by international law or law of nations, but rather is governed by municipal law, that is, the internal law of each country.108 Vattel’s writings on citizenship by “descent” reflected in many circumstances what the law or practice may have been in certain European nations at the time—that is, that citizenship followed the nationality or citizenship of one’s father, as opposed to the place of birth.109 This concept, although prevalent on the European Continent was, even as expressly noted in Vattel’s work itself, clearly not the law in England or thus the American colonies,110 and clearly was not the concept and common understanding upon which U.S. law was based. James Madison, often referred to as the “Father of the Constitution,” expressly explained in the House of Representatives in the First Congress, in 1789, that with regard to citizenship the “place” of birth, and not “parentage” was the controlling concept adopted in the United States.111 Additionally, the Supreme Court in 1971 simply and succinctly explained, after citing historical legal precedent: “We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, the place of birth governs citizenship status except as modified by statute.”112 Again in 1998, the Supreme Court expressly recognized jus soli, the place of birth, as controlling in the United States, noting that in this country “citizenship does not pass by descent” except as provided by Congress in statute.113

107 Lynch v. Clark at 246-247. Emphasis in original. 108 Inglis v. Sailors’ Snug Harbor, 3 Pet. 99, 162 (1830); United States v. Wong Kim Ark, 169 U.S. 649, 668 (1898); Perkins v. Elg, 307 U.S. 325, 329, (1939); Lynch v. Clark at 249; see also Frederick Van Dyne (Assistant Solicitor, Department of State), CITIZENSHIP OF THE UNITED STATES, at 3-4 (New York 1904). 109 See discussion of European nations following concepts of citizenship by “descent” through one’s father, in Flournoy, Dual Nationality and Election, 30 YALE LAW JOURNAL, at 554-559. Vattel explained that the citizenship of “children naturally follow the condition of their fathers,” and that “in order to be of the country, it is necessary that a person be born of a father who is a citizen ....” Vattel, LAW OF NATIONS, at Ch. XIX, p. 101 (1797 ed.). It is interesting to recognize that Vattel never expressly postulated a “two-citizen” parent requirement for what he described as natives or indigenes. Rather, grammatically, the plural of parent or relative (parens) merely conforms to the plural subject of “natives” or “indegenes.” That is, for example, if the rule is that the “children born in the United States of foreign diplomats” are not to be considered natural born “citizens” of the United States under common law principles, such statement does not necessarily require that both parents must be foreign diplomats to deny such U.S. citizenship status to that child. See, e.g., In re Thenault, 47 F.Supp. 952 (D.D.C. 1942). 110 Vattel, LAW OF NATIONS, at Ch. XIX, p. 102 (1797 ed.). See discussion by the Connecticut Supreme Court of Errors, in Town of New Hartford v. Town of Canaan, 5 A. 360 (Conn. 1886): “In Field’s International Code, 132, it is said: ‘A legitimate child, wherever born, is a member of the nation of which its father at the time of its birth was a member.’ Upon this Morse, in his work on Citizenship, p. 17, thus comments: ‘This is the law in most European States (Westlake, p. 16; Foelix, p. 54), but not in England or in the United States.’” 111 “It is an established maxim that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general, place is the most certain criterion; it is what applies in the United States ....” James Madison, explaining the citizenship eligibility of Representative-elect William Smith, in the election contest of Ramsay v. Smith, 1st Cong., 1st Sess. (1789), in Clarke and Hall, CASES OF CONTESTED ELECTIONS IN CONGRESS, FROM THE YEAR 1789 TO 1834, INCLUSIVE, at p. 33 (Washington 1834). 112 Rogers v. Bellei, 401 U.S. 815, 828 (1971). 113 Miller v. Albright, 523 U.S. 420, 434, n.11 (1998). The “common” understanding of the term “natural born” citizen during the revolutionary period, the time of the drafting of the Constitution, and in the generation after, was clearly that of one who was a citizen “at birth,” and the determining factor in the United States was the place of birth in the territory of the United States, rather than that of ancestry, lineage, or descent, except as provided in statute. This common understanding has continued up until this day as the term “natural born” citizen has entered the popular, “common” (continued...)


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Citizenship at Birth: Case Law and Interpretations The overwhelming evidence of historical intent, general understandings, and common law principles underlying American jurisprudence thus indicate that the most reasonable interpretation of “natural born” citizens would include those who are considered U.S. citizens “at birth” or “by birth,” either by the operation of the strict “common law” of jus soli derived from English common law (physically born in the United States and subject to its jurisdiction, without reference to parentage or lineage), or under existing federal statutory law incorporating long-standing concepts of jus sanguinis, the law of descent, including those born abroad of U.S. citizen-parents. This general historical understanding and interpretation is supported, as well, by specific federal case law in the United States, and in official legal opinions of U.S. officers.

Although the Supreme Court has not needed to rule specifically on the presidential eligibility clause, as discussed in more detail below, numerous federal cases, as well as state cases, for more than a century have used the term “natural born citizen” to describe a person born in this country and under its jurisdiction, even to parents who were aliens in the U.S.114 Additionally, several Supreme Court cases, as well as numerous constitutional scholars, have used the term “native born” citizen to indicate all of those children physically born in the country (and subject to its jurisdiction), without reference to parentage or lineage, and employed such term in reference to those citizens eligible to be President under the “natural born” citizenship clause, as opposed to “naturalized” citizens, who are not.115 In no currently controlling legal opinion in American jurisprudence has the citizenship or nationality of one’s parents or forebears been considered a determining factor in the eligibility of a native born U.S. citizen to be President, and no holding in any case in federal court has ever established a “two citizen-parent” requirement, or other requirement of lineage or bloodline, for a native born U.S. citizen to be eligible for the Presidency.

(...continued) legal lexicon as defined as: “A citizen by birth, as distinguished from a citizen who has been naturalized.” BALLENTINE’S LAW DICTIONARY, at 831 (“natural-born citizen”) (3rd ed. 1969), and as “A person born within the jurisdiction of a national government,” BLACK’S LAW DICTIONARY, at 278 (“natural-born citizen”) (9th ed. 2009), as well as the common dictionary meanings of “natural-born,” as “having a specified status or character by birth” (note specific reference to presidential eligibility), WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE, UNABRIDGED, at p. 1507 (1976). It may also be noted that the English word “natural,” according to the OXFORD ENGLISH DICTIONARY, is rooted in the “Middle English (in the sense ‘having a certain status by birth’) ….” Emphasis added. 114 Lynch v. Clarke, 3 N.Y. Leg. Obs. 236 (1 Sand. ch. 583) (1844 ); United States v. Rhodes, 27 Fed. Case 785 (No. 16151) (C.C. Ky. 1866); In re Look Tin Sing, 21 F. 905, 906 (Cal. Cir. 1884); Town of New Hartford v. Town of Canaan, 5 A. 360 (Conn. 1886); United States v. Wong Kim Ark, 169 U.S. 649, 662-63, 674-75 (1898); Kwok Jan Fat v. White, 253 U.S. 454, 457 (1920); Dos Reis ex rel. Camara, 68 F.Supp. 773, 774 (D.Mass. 1946); Yamauchi v. Rogers, 181 F. Supp. 934, 935-936 (D.D.C. 1960); Diaz-Salazar v. INS, 700 F.2d 1156, 1160 (7th Cir. 1982), cert. denied, 462 U.S. 1132 (1983); Mustata v. U.S. Department of Justice, 179 F.3d 1017, 1019 (6th Cir. 1999); Hollander v. McCain, 566 F.Supp.2d 63, 66 (D.N.H. 2008); Ankeny v. Governor of the State of Indiana, 916 NE2d 678, 688 (2009), pet. to transfer jur. den. (Ind. Supreme Court, Apr. 5, 2010). 115 Luria v. United States, 231 U.S. 9, 22 (1913); United States v. Schwimmer, 279 U.S. 644, 649 (1929); United States v. MacIntosh, 283 U.S. 605 (1931); Schneider v. Rusk, 377 U.S. 163, 165 (1963); Kent, COMMENTARIES ON AMERICAN LAW, at 273 (Vol. I, 2d ed. 1832); Story, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES, § 271, at 167 (Boston 1840); St. George Tucker, William Blackstone, BLACKSTONE’S COMMENTARIES: WITH NOTES AND REFERENCE TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND OF THE COMMONWEALTH OF VIRGINIA, Vol. I, App. at 323 (Philadelphia 1803); Gordon, Mailman, & Yale-Loehr, IMMIGRATION LAW AND PROCEDURE, Vol. 7, §§ 91.02[4][a] and § 91.02[4][c] (rev. ed. 2010).


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Some of the legal arguments based on American jurisprudence forwarded by those who support an alternate and highly exclusionary reading of the term “natural born” citizen (including reading into the Constitution a requirement for one to have two U.S. citizen-parents) often begin with a citation to language in the 1857 Dred Scott decision, Scott v. Sandford.116 The Dred Scott decision, in addition to denying that even freed slaves or their progeny could be “citizens” of the United States (and thus finding that the specific petitioner in that case did not have the capacity to bring the original suit under consideration), attempted to provide legal justification under the Constitution for human slavery in the United States and the resultant treatment of “negroes of the African race” as property and chattel without rights under the Constitution. In so doing, the Court fashioned a very exclusive understanding, eventually rejected and overturned by later Supreme Court decisions, of who were “citizens” of the United States, even if one were born to emancipated slaves in this country. The opinion of the Court, written by Chief Justice Taney, noted that the status of those “whose ancestors were negroes of the African race … imported into this country, and sold and held as slaves” was that of non-citizens.117 That is, that even “descendants of such slaves, when they shall be emancipated, or who had been born of parents who had become free before their birth” were “not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides….”118 The Court based such findings regarding citizenship and ancestry on the opinion that such persons did not make up, and were not thought to be part of the community or the “political body” of the “sovereign people” of the United States who ratified the Constitution, and were thus not “a constituent member of this sovereignty” since “they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority for, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.”119

In a concurring opinion in Scott v. Sandford , one Justice cited to Vattel’s discussion of citizenship and “natural born” citizen (as later interpretations into English had expressed the French usage in his treatise, Law of Nations), not specifically with regard or intent to define “natural born” citizenship in reference to presidential eligibility, but rather to support his opinion that Negroes brought to America as slaves, as well as their progeny, could not be citizens of the United States.120 It should be noted that this particular opinion was not only a concurring opinion, not joined by any other Justice in the Dred Scott decision, but that such concurrence by Justice Daniel has never formed the basis or authority for any majority ruling of a federal court in the history of American jurisprudence. 121 Similar to the opinion of the Court, Justice Daniels’ opinion has been superseded and controverted by later Supreme Court rulings and constitutional amendments.

116 Scott v. Sandford, 60 U.S. (19 Howard) 393 (1857). 117 60 U.S. at 403. 118 60 U.S. at 403-404. 119 60 U.S. at 404-405. The Court also found that the Congress had exceeded its authority in outlawing slavery in new territories that the United States had acquired, giving a very narrow and restrictive reading of the express constitutional authority of Congress over federal lands (Article IV, Sec. 3, cl. 2) to cover only those lands owned at the time of the drafting of the Constitution, and not those subsequently acquired from foreign nations. 60 U.S. at 432. 120 60 U.S. at 476-477, Daniel, J., concurring. 121 A somewhat parallel, restrictive argument (and reference to de Vattel) was put forth again later in the 1800’s in the minority opinion in Wong Kim Ark, 169 U.S. at 708 (Fuller, C.J., Harlan, J., dissenting) but, as noted, has never since formed the basis of a majority opinion or any controlling precedent in American jurisprudence.


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It is general knowledge that the Dred Scott decision has widely and commonly been described as the “worst” and most vilified Supreme Court decision in the history of the United States.122 The ruling in that case, not only because of the enactment of the Thirteenth, Fourteenth, and Fifteenth Amendments, but also because of its specious constitutional and legal reasoning,123 has been reduced to an “historical curiosity.”124 As explained by historian and professor James Kettner in his work, The Development of American Citizenship, 1608-1870:

In seeking to derive consistent exclusionist principles from an ambivalent legal tradition, Taney could only succeed by distorting history and making “bad law.” ... In making national citizenship exclusively the effect of naturalization or pedigree, he disregarded volumes of judicial precedents emphasizing place of birth without regard to ancestry. Taney’s opinion rested instead on the social fact of prejudice and discrimination.125

Within a few years of the Dred Scott decision, in 1862, the Attorney General of the United States, Edward Bates, issued a formal legal opinion to a federal department on the question of “citizenship” of those born within the geographic boundaries of the United States which clearly demonstrated the weakness in the legal reasoning of the Court in Dred Scott.126 This opinion is significant because it preceded the adoption of the Fourteenth Amendment, and was thus based on the then-existing state of the law, constitutional precepts, and common law principles derived from English law, and clearly expressed the legal and constitutional reasoning concerning “citizenship” in the United States underlying previous federal court precedent (other than and ignored by the majority in Dred Scott) as well as the foundational principles in subsequent Supreme Court determinations over the next 150 years. The formal opinion of the Attorney General concluded that those who were “natural born” citizens were those who were U.S. citizens “by birth”:

We have natural-born citizens, (Constitution, article 2, sec. [1],) not made by law or otherwise, but born. And this class is the large majority; in fact, the mass of our citizens, for all others are exceptions specially provided for by law. As they became citizens in the natural way, by birth, so they remain citizens during their natural lives, unless, by their own

122 United States, National Archives and Records Administration, http://www.ourdocuments.gov: “The decision of Scott v. Sandford, considered by legal scholars to be the worst ever rendered by the Supreme Court …”; David Savage, How Did They Get It So Wrong? ABA JOURNAL, January 1, 2009: “… the worst decisions of the U.S. Supreme Court? Historians and court scholars agree on a pair of 19th century opinions: Dred Scott v. Sandford, the 1857 ruling that upheld slavery even in the free states ….”; Paul Finkelman, DRED SCOTT V. SANDFORD: A BRIEF HISTORY WITH DOCUMENTS, at pp. 4-5, citing, among others for the proposition that the case is the worst Supreme Court decision, Justice Antonin Scalia, Professor Alexander Bickel of Yale Law School, Chief Justice Charles Evans Hughes; Justice Felix Frankfurter; and Justice John Marshall Harlan; Junius P. Rodriguez (editor), SLAVERY IN THE UNITED STATES: A SOCIAL, POLITICAL, AND HISTORICAL ENCYCLOPEDIA, p. 265 (2007): “Universally condemned as the U.S. Supreme Court’s worst decision …”; Corinne J. Naden and Rose Blue, DRED SCOTT: PERSON OR PROPERTY, at p. 111 (2005): “Part of the legacy of Scott v. Sandford is that it is generally regarded as the worst decision ever handed down by the Supreme Court and the worst failure of the U.S. judicial system”; Lawrence Baum (Ohio State University), Perspectives on Politics, Cambridge Journal On Line, Cambridge University Press, Vol. 5, No. 2, at p. 338 (June 2007): “Scott v. Sandford (1857), the Dred Scott decision, is the consensus choice as the worst decision in the Supreme Court’s history.” 123 Robert Bork, THE TEMPTING OF AMERICA, p. 28 (1990): “Speaking only of the constitutional legitimacy of the decision, and not of its morality, this case remained unchallenged as the worst in our history .…” 124 CONSTITUTION ANNOTATED, S. Doc. 108-17, at 362. 125 Kettner, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608-1870, at 328 (U.N.C. Press 1978). Emphasis added. 126 The Attorney General of the United States has the express statutory authority to issue official legal opinions to the departments and agencies of the federal government. Judiciary Act of 1789, Section 35, 1 Stat. 73 (September 24, 1789), see now 28 U.S.C. § 512.


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voluntary act, they expatriate themselves, and become citizens of another nation. For we have no law, (as the French have,) to decitizenize a citizen who has become such either by the natural process of birth, or by the legal process of adoption.... The Constitution itself does not make the citizens; it is, in fact, made by them. It only intends and recognizes such of them as are natural—home-born; and provides for the naturalization of such of them as were alien—foreign born ....

As far as I know, Mr. Secretary, you and I have no better title to the citizenship which we enjoy than the “accident at birth”—the fact that we happened to be born in the United States. And our Constitution, in speaking of natural-born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle ... that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic....[I]t follows that every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the “natural-born” right as recognized by the Constitution ... That nativity furnishes the rule, both of duty and of right as between the individual and the government, is a historical and political truth ... Nevertheless, for the satisfaction of those who may have doubts upon the subject, I note a few books, which, I think, cannot fail to remove all such doubts: Kent’s Com., vol. 2, part 4, section 25; Bl. Com., book 1, chapter 10, p. 365; 7 Co. Rep., Calvin’s case; 4 Term Rep., p. 300, Doe vs. Jones; 3 Pet.Rep., p. 246; Shanks vs. Dupont; and see a very learned treatise, attributed to Mr. Binney, in Am. Law reporter, 193. 127

The Attorney General thus opined that those who are “born” citizens of the United States, as opposed to those who are “aliens” and must go through the legal process of naturalization, are “natural born” citizens of this country, without any reference to the “citizenship” or nationality of their parents. The Attorney General’s opinion emphasized that these “natural born” citizens, those who are citizens of the United States at birth or “by birth,” including “every person” who is “home born,” are not within a very narrow or special category, but rather are “the mass of our citizens.” In an earlier formal opinion from Attorney General Bates to Secretary of State Seward, the Attorney General similarly concluded: “I am quite clear in the opinion that children born in the United States of alien parents, who have never been naturalized, are native-born citizens of the United States, and, of course, do not require the formality of naturalization to entitle them to the rights and privileges of such citizenship.”128

The Supreme Court itself soon began to question, re-evaluate, and move away from the legal reasoning underlying the Dred Scott decision. In one early Supreme Court case after Dred Scott, the Court narrowly applied the earlier theory of citizenship in Dred Scott (as being only the original community of people who ratified the Constitution and their progeny),129 and relied instead on the common law to discuss the concept of citizenship in the United States after the original generation of citizens. The Court noted that those children born on the soil of the United States to citizen-parents would clearly be among those who are “natural born” citizens under the common law, but did not rule or hold that such category of citizenship was exclusive to such children.130 The Supreme Court in Minor v. Happersett, in ruling in 1875 that women did not have the constitutional right to vote in federal or state elections (as a privilege or immunity of citizenship), raised and discussed the question in dicta as to whether one would be a “natural 127 10 OP. ATTY. GEN. 382, 389, 394-395 (November 29, 1862). Emphasis in original. 128 10 OP. ATTY. GEN. 328 (September 1, 1862). 129 Minor v. Happersett, 88 U.S. 162, 166-167 (1875). 130 Id. at 167-168.


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born” citizen if born to only one citizen-parent or to no citizen-parents, noting specifically that “some authorities” hold so. The Court, however, expressly declined to rule on that subject in this particular case. In dicta, that is, in a discussion not directly relevant to or part of the holding in the case, the Court explained:

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.131

Those issues or “doubts” raised in dicta by the Supreme Court in Happersett in 1875 were, however, answered by the Supreme Court in a later decision in 1898, in United States v. Wong Kim Ark, which clearly repudiated the narrow and exclusive “original-community-of-citizens” reasoning of the Court in Dred Scott based on lineage and parentage, in favor of interpreting the Constitution in light of the language and principles of the British common law from which the concept was derived. The majority opinion of the Court clearly found, by any fair reading of its reasoning, discussion, and holding, that every person born in the United States and subject to its jurisdiction (that is, not the child of foreign diplomats or of troops in hostile occupation), regardless of the citizenship of one’s parents, is a “natural born” citizen, and that the Fourteenth Amendment merely affirmed the common law and fundamental rule in this country that one born on the soil of the United States and subject to its jurisdiction is a “natural born” citizen:

The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children born here of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke, in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural born subject”; and his child, as said by Mr. Binney in his essay before quoted, “if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.”132

131 Minor v. Happersett, at 167-168. Emphasis added. Any analysis of the distinction between “holding” and dicta is simplified in Minor v. Happersett, as the Supreme Court expressly explained that “For the purposes of this case it is not necessary to solve” the issue of parental citizenship, thus clearly stating that its discussion was not part of, and the resolution of the issue not necessary to, the underlying holding or ruling of that case. 132 169 U.S. at 693. The Court also found in this case that those who are “subject to the jurisdiction” of the United States means those who come within the jurisdiction of its laws, such that jurisdiction may be exercised over them, thus (continued...)


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The Supreme Court in Wong Kim Ark cited with approval to an earlier decision of a federal circuit court, written by Supreme Court Justice Swayne sitting on circuit, explaining that

All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as in England.... We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject to the same exceptions, since before the Revolution.133

The underlying opinions and reasoning of the Attorney General in 1862 (citing the historical intent, understanding, and common law principles relating to citizenship), the federal appellate court opinion written by Supreme Court Justice Swayne in 1866, and the detailed discussion of citizenship and the holding by the Supreme Court in Wong Kim Ark in 1898, citing to judicial precedents such as The Charming Betsey (1804); Inglis v. Sailor’s Snug Harbor (1830), McCreery v. Somerville (1824), and Lynch v. Clarke (1844), have been regularly confirmed and supported by later Supreme Court and other federal court decisions finding that the two general categories of “citizens” are: (1) those who are “natural born” citizens, that is, those who are citizens “by birth” or “at birth,” including all native born citizens, and (2) those who were born “aliens” and must be “naturalized” to be citizens.134 As explained by the Supreme Court in 1998:

There are “two sources of citizenship, and two only: birth and naturalization.” United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). Within the former category, the Fourteenth Amendment of the Constitution guarantees that every person “born in the United States, subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.” 169 U.S. at 702. Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress. Id. at 703.135

The interpretation that one who obtains “citizenship by birth” is a “natural born” citizen eligible to be President, as distinguished from one who derives “citizenship by naturalization” and who is not so eligible, was discussed by the Supreme Court as early as 1884:

The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the Constitution, by which “no person, except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall

(...continued) clarifying some confusion that might have arisen from dicta in an earlier Supreme Court case (The Slaughterhouse Cases, 16 Wall. (83 U.S.) 36, 73 (1874)). 169 U.S. at 687, 693. 133 169 U.S. at 662-663, citing United States v. Rhodes, 27 Fed. Case 785 (No. 16151) (C.C. Ky. 1866). 134 Elk v. Wilkins, 112 U.S. 94, 101 (1884); Luria v. United States, 231 U.S. 9, 22 (1913); Rogers v. Bellei, 401 U.S. 815, 828 (1971); Schneider v. Rusk, 377 U.S. 163, 165 (1963); MacIntosh v. United States, 42 F.2d 845, 848 (2nd Cir. 1930); Diaz-Salazar v. INS, 700 F.2d 1156, 1160 (7th Cir. 1982), cert. den. 462 U.S. 1132 (1983); Mustata v. U.S. Department of Justice, 179 F.3d 1017,1019 (6th Cir. 1999); Robinson v. Bowen, 567 F.Supp. 1144, 1145-1146 (ND Cal. 2008); Hollander v. McCain, 566 F.Supp. 63, 66 (D.N.H 2008); note also state court in Ankeny v. Governor of the State of Indiana, 916 NE2d 678 (2009), petition to transfer jurisdiction denied (Ind. Supreme Court, Apr. 5, 2010). 135 Miller v. Albright, 523 U.S. 420, 423-424 (1998). See also Scalia, J. and Thomas, J., concurring: “The Constitution ‘contemplates two sources of citizenship, and two only: birth and naturalization.’” When one is born “in” the United States and “subject to the jurisdiction” of the United States that person becomes a citizen “at birth,” that is, “becomes at once a citizen of the United States, and needs no naturalization.” 523 U.S. at 461, citing Wong Kim Ark, 169 U.S. at 702.


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be eligible to the office of President;” and “the Congress shall have the power to establish an uniform rule of naturalization.” Constitution, art. 2, sect. 1; art. 1, sect. 8.136

The federal courts have on numerous occasions examined those two categories of citizens of the United States—“natural born” citizens (those who are citizens “by birth”), and “naturalized” citizens (those who are born “aliens” and who must go through the process of “naturalization”)—in the context of the various rights and duties of such citizens within these two categories. The Court has thus explained that “eligibility to the Presidency” is one of the very few “rights and prerogatives of citizenship obtained by birth in this country” which is not available to a “naturalized” citizen.137 Similarly, the Court has noted: “The naturalized citizen has as much right as the natural-born citizen to exercise the cherished freedoms of speech, press and religion....”;138 and the Court has examined the right of New York to require its “class of civil servants to be citizens, either natural born or naturalized.”139 The United States Court of Appeals for the 9th Circuit more recently explained that “once naturalized [appellant] is afforded precisely the same protection of his right to associate as is a natural born citizen.”140 Referring specifically to eligibility to the office of President, a United States Court of Appeals found:

No more is demanded of an alien who becomes a citizen than a natural-born citizen, and, when an alien becomes a citizen, he is accorded all the rights and privileges afforded to a natural-born citizen except eligibility to the presidency.141

It should be noted that numerous constitutional scholars and commentators have used the term “native born” or “native citizen” in a manner which might in some contexts be considered synonymous with “natural born,” to indicate a U.S. citizenship from birth in relation to Presidential eligibility, and to distinguish such eligibility from one who is a “naturalized” citizen. James Kent, for example, in his Commentaries on American Law, explained: “As the President is required to be a native citizen of the United States, ambitious foreigners can not intrigue for the office, and the qualification of birth cuts off all those inducements from abroad to corruption, negotiation, and war....”142 Similarly, Justice Joseph Story used the term “native citizen” in a treatise on the Constitution: “It is not too much to say that no one but a native citizen, ought ordinarily to be entrusted to an office so vital to the safety and liberties of the people.”143 As noted

136 Elk v. Wilkins, 112 U.S. 94, 101 (1884). Emphasis added. 137 Knauer v. United States, 328 U.S. 654, 658 (1946) (emphasis added): “Citizenship obtained through naturalization is not a second-class citizenship. It has been said that citizenship carries with it all the rights and prerogatives of citizenship obtained by birth in this country ‘save that of eligibility to the Presidency.’” 138 Baumgartner v. United States, 322 U.S. 665, 680 (1944) (emphasis added). The Court also noted there: “Under our Constitution, a naturalized citizen stands on equal footing with the native citizen in all respects save that of eligibility to the Presidency.” Id. at 673. 139 Sugarman v. Dougall, 413 U.S. 634, 661 (1973) (Rehnquist, J., dissenting, as to whether such distinction between citizens and aliens in New York’s civil service law violates equal protection clause). 140 Price v. United States Immigration and Naturalization Service, 941 F.2d 878, 884-885 (9th Cir. 1991). Note also Justices Rutledge and Murphy concurring in a case concerning denaturalization, comparing the rights of a “natural-born citizen [to] his birthright” citizenship and the rights of “naturalized” citizens. Klapprott v. United States, 335 U.S. 601, 617 (1949). 141 MacIntosh v. United States, 42 F.2d 845, 848 (2nd Cir. 1930), reversed on other grounds, United States v. MacIntosh, 283 U.S. 605 (1931). The Supreme Court, in the appeal of this case, similarly found: “The alien, when he becomes a naturalized citizen, acquires, with one exception, every right possessed under the Constitution by those citizens who are native born.” 283 U.S. at 623-624. 142 Kent, COMMENTARIES ON AMERICAN LAW, at 273 (Vol. I, 2d ed. 1832). 143 Story, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES, § 271, at 167 (Boston 1840).


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in the legal treatise from1803 by the noted legal scholar St. George Tucker, editing Blackstone’s works and placing them in an American context: “That provision of the Constitution that requires that the President be a native-born citizen (unless he were a citizen of the United States when the Constitution was adopted) is a happy means of securing against foreign influence....”144

Although the term “native born” citizen or “native citizen” was seemingly used synonymously with “natural born” in reference to presidential eligibility by such noted constitutional scholars, it is most often not necessarily considered a specific term of art in a legal sense, does not appear in the Constitution, and generally means, in common usage with respect to U.S. citizenship, anyone born physically within the geographic boundaries of the United States, without reference to the citizenship of one’s parents. In one of the most extensive and widely respected multi-volume treatises on immigration and naturalization laws, Immigration Law and Procedure, the authors discuss the meaning of the term “native-born”:

[a] Native-Born Citizens

This is by far the largest group of U.S. citizens, and their status is acquired simply through birth in the United States, as described in Chapter 92 below. The Constitution does not refer to native-born citizens, although it does mention natural-born citizens. Nor does this term appear in the statute, which includes the native born among various categories who acquire citizenship at birth. However, the designation of the native born is an accurate and convenient one, generally used in colloquial and legal discussions.145

Under common, modern understanding and later Supreme Court explanations, “natural born” citizens would include “native born” U.S. citizens, that is, those born physically within the borders of the country, but might also include others whose citizenships were “obtained by birth” in other ways. The Supreme Court of the United States has on several occasions also used the terminology “native born” citizens or “native” citizens to distinguish such citizenship “at birth” from those who have obtained U.S. citizenship through “naturalization.” Even considering that the Court was using the terms in a narrow sense, and putting aside for the moment the issue of children born abroad of U.S. citizens, it is clear that the Supreme Court in these instances indicated that, at the least, all of those persons obtaining citizenship by birth within the geographic area of the United States (i.e., “native born” citizens) were eligible for the presidency (as being within the category of “natural born” citizens), as opposed to “naturalized” citizens. In Schneider v. Rusk, the Supreme Court appeared to use the term “native born” as synonymous and interchangeable with the term “natural born” in referencing those citizens eligible for the presidency, as opposed to “naturalized” citizens who are not eligible:

We start with the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the “natural born” citizen is eligible to be President. Art. II, § 1.146

144 St. George Tucker, William Blackstone, BLACKSTONE’S COMMENTARIES: WITH NOTES AND REFERENCE TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND OF THE COMMONWEALTH OF VIRGINIA, Vol. I, App. at 323 (Philadelphia 1803). 145 Gordon, Mailman, & Yale-Loehr, IMMIGRATION LAW AND PROCEDURE, Vol. 7, § 91.02[4][a] (rev. ed. 2010). Emphasis added. See also United States v. Wong Kim Ark, 169 U.S. at 674-675. 146 377 U.S. 163, 165 (1963).


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A similar distinction between “naturalized” citizens who are not eligible to the Presidency, and those who are “native” citizens (that is, those who are citizens by birth in the country) who are eligible was made in the earlier Supreme Court case of Luria v. United States:

Citizenship is membership in a political society, and implies a duty of allegiance on the part of the member and a duty of protection on the part of society. These are reciprocal obligations, one being a compensation for the other. Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency.147

The Supreme Court in 1929, in United States v. Schwimmer, had stated in a similar manner that “Except for eligibility to the Presidency, naturalized citizens stand on the same footing as do native born citizens,”148 and noted again in 1931 that, “The alien, when he becomes a naturalized citizen, acquires, with one exception, every right possessed under the Constitution by those citizens who are native born.”149

Although a small faction of advocates now apparently attempt to cast doubt as to whether every native born U.S. citizen is a “natural born” citizen under the Constitution, all doubt in the judicial arena has been resolved for more than a century in favor of “natural born” status of such individuals who are citizens “by birth” or “at birth” (as having been born in and under the jurisdiction of the United States). As discussed in more detail in the following section of this report, there have been some legitimate legal arguments and varying opinions about the status of foreign born children of U.S. citizens as being either “natural born” citizens under common law principles, or citizens who are “naturalized” by statute. There appears, however, to be no legitimate legal issue outstanding concerning the eligibility of all native born citizens of the United States to be President. The case law in the United States, as well as the clear historical record, does not support the argument or contention that there is some further or additional “subcategory” of “citizen” of the United States who, although native born and subject to the jurisdiction of the United States, is neither a “natural born” citizen nor a “naturalized” citizen.150 Rather, as the cases discussed above demonstrate, the categories uniformly recognized and referred to in case law in the United States as “citizens” of the United States are “natural born” citizens (including all “native born” citizens), that is, those who are citizens “at birth,” as opposed to “naturalized” citizens, that is, those who are aliens at birth and must go through naturalization to become citizens.

147 231 U.S. 9, 22 (1913). This case cites further to Osborn v. United States Bank, 9 Wheat. (22 U.S.) 737, 827 (1824), in which Chief Justice Marshall noted the distinctions between a “naturalized citizen” and a “native citizen,” noting that the “naturalized citizen … becomes a member of the society, possessing all the rights of a native citizen …. He is distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction .…” 148 United States v. Schwimmer, 279 U.S. 644, 649 (1929). 149 United States v. MacIntosh, 283 U.S. 605, 623-624 (1931). 150 As to the possibility of the rather unique argument that native born U.S. citizens, born within the United States to non-citizen parents, could be somehow considered “naturalized” citizens, the Supreme Court cases noted immediately above, clearly repudiate that notion by distinguishing native born citizens from naturalized citizens. As explained by the Supreme Court in Miller v. Albright, 523 U.S. 420, 423-424 (1998), every person “born in the United States, subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.”


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Legal Cases and Senator McCain During the 2008 presidential campaign between Senators McCain and Obama, several lawsuits were initiated challenging the “natural born” citizenship eligibility of Senator McCain who was not born “in” the United States, but rather in the Panama Canal Zone in 1936. Because the place of birth is the concept that principally and traditionally governs common law natural born citizenship in the United States,151 questions have arisen as to whether those born outside of the geographic boundaries of the United States to U.S. citizen-parents, and who thus are citizens at birth by descent, should also be considered “natural born” citizens eligible to be President. The legal and historical questions were summarized in the treatise Immigration Law and Procedure:

[c] Natural-Born Citizens

Under the Constitution, only “natural born” citizens are eligible to become President or Vice President of the United States. The Constitution nowhere defines this term, and its precise meaning is still uncertain. It is clear enough that native-born citizens are eligible and that naturalized citizens are not. The doubts relate to those who acquire U.S. citizenship by descent, at birth abroad to U.S. citizens.

“Natural born citizen” is an archaic term, derived from ancient British antecedents. Other than its use in the Presidential Qualifications Clause, its only other use was in the provision for citizens by descent in the naturalization statute enacted by the first Congress in 1790.

The uncertainty concerning the meaning of the natural-born qualification in the Constitution has provoked discussion from time to time, particularly when the possible presidential candidacy of citizens born abroad was under consideration. There has never been any authoritative adjudication. It is possible that none may ever develop. However, there is substantial basis for concluding that the constitutional reference to a natural-born citizen includes every person who was born a citizen, including native-born citizens and citizens by descent.152

It has been noted by certain proponents of a narrow interpretation of natural born citizen (to include only those born in the United States) that the Fourteenth Amendment now clearly provides that a U.S. citizen is one who is either “born or naturalized in the United States.” Under such reasoning, it is argued that a “citizen” of the United States would be a citizen only or exclusively by virtue of either being “born ... in” the United States (under the common law principles of jus soli as reflected in the Fourteenth Amendment), or by virtue of being “naturalized” in the United States, which some argue means that one is made a citizen by the operation of statutory law. Earlier federal court cases gave credibility to this version of who would be a native or natural born citizen, as opposed to a “naturalized” citizen. As explained by the Supreme Court in Wong Kim Ark: 151 Rogers v. Bellei, 401 U.S. 815, 828 (1971): “We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, the place of birth governs citizenship status except as modified by statute”; United States v. Wong Kim Ark, 169 U.S. supra at 693: “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country ....”; Miller v. Albright, 523 U.S. 420, 434, n.11 (1998): other than as provided by statute “citizenship does not pass by descent”; Lynch v. Clarke, 3 N.Y. Leg. Obs. 236, 243-244 (1 Sand. ch. 583) (1844): “... at the Declaration of Independence, by the law of each and all of the thirteen states, a child born within their territory and ligeance respectively, became thereby a citizen of the state of which he was a native. This continued unchanged to the time when our National Constitution went into full operation”; 10 OP. ATTY. GEN. 382, 394-395 (November 29, 1862). 152 7 IMMIGRATION LAW AND PROCEDURE at § 91.02[4][c]. Emphasis added, footnotes omitted.


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Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.153

Under such argument, a person who is born of American parents abroad, although clearly a “citizen” of the United States by law, is one who is not a citizen by virtue of being “born ... in” the United States,154 and must, therefore, be one of those citizens who has been “naturalized” by the operation of law, even though such naturalization was “automatic” at birth. It is therefore argued that such citizen should not be considered a “natural born” citizen, but rather a “naturalized” citizen who is not eligible for the Presidency. Some earlier federal cases had, in fact, specifically held that a person who was born abroad of a father who was a naturalized American citizen, and who therefore was a citizen of the United States by virtue of a statutory provision, was himself a “naturalized” American citizen. In Zimmer v. Acheson, the United States Court of Appeals for the 10th Circuit found that the appellant, who had been born in Germany to a father who had been a naturalized U.S. citizen, was himself a “naturalized” citizen who could be expatriated under the provisions and requirements of the then-existing federal law:

There are only two classes of citizens of the United States, native-born citizens and naturalized citizens; and a citizen who did not acquire that status by birth in the United States is a naturalized citizen.

Revised Statutes § 1993, in force at the time of the birth of Harry Ward Zimmer [appellant], provided: “All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.”

If Werner Herman Zimmer [the appellant’s father], by virtue of his naturalization on October 30, 1896, was a citizen of the United States on August 9, 1905, the date of the birth of Harry Ward Zimmer, then the latter, at the time of his birth, became a citizen of the United States by virtue of the foregoing statute, but his status as a citizen was that of a naturalized citizen and not a native-born citizen.155

Those who support a broader, more inclusive reading of the Constitution to include as “natural born” citizens those born abroad to U.S. citizen-parents, note that these earlier decisions were

153 169 U.S. at 702-703. Emphasis added. 154 See, e.g., “Insular cases” where the Supreme Court, in another context, found that the phrase “within the United States” means within the geographical limits of the states and the District of Columbia, and in those territories under the jurisdiction of the United States only if they have been “incorporated” into the United States. Downes v. Bidwell, 182 U.S. 244, 250-251 (1901); Balzac v. Porto Rico, 258 U.S. 298, 304-305 (1922). In Rabang et al. v. Immigration and Naturalization Service, 35 F.3d 1449 (9th Cir. 1994), ), cert. denied, sub nom. Sanidad v. INS, 515 U.S. 1130 (1995), the Court of Appeals found that those born in the Philippines, at the time it was a United States possession, were not citizens at birth merely because of their place of birth since they were not born “in” the geographic United States, regardless of the exercise of American jurisdiction over the territory. 155 Zimmer v. Acheson, 191 F.2d 209 (10th Cir. 1951). See similar finding in Schaufus v. Attorney General of the United States, 45 F. Supp. 61, 66-67 (D.Md. 1942).


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based on the more narrow language of the Fourteenth Amendment, but argue that the Fourteenth Amendment was adopted to rectify the wrongly reasoned and decided Supreme Court decision in the Dred Scott case,156 and was not intended to amend or necessarily even to address the issue of “natural born” citizenship under Article II, Section 1, cl. 5, relating to the eligibility for President.157 The term “natural born citizen” in Article II, it is argued, should be interpreted not only in light of the later Fourteenth Amendment, and the reasons for adopting the Fourteenth Amendment, but also in light of the common law and common understanding and usage of the term at the time of the adoption of the Constitution.158

It has been pointed out that more recent cases have held that the seemingly exclusive language of the Fourteenth Amendment of citizenship being limited only to those who are “born or naturalized in the United States,” is applicable only with regard to Fourteenth Amendment first-sentence-citizenship, and is not necessarily the exclusive means of acquiring citizenship “at birth,” since the category of “at birth” citizenship can clearly be expanded by law adopted by Congress. Such cases indicate that the Fourteenth Amendment establishes a “floor” for citizenship at birth, or for naturalization, which can be expanded by federal law.159 The Supreme Court in Rogers v. Bellei explained that under the Fourteenth Amendment’s citizenship clause the requirement that one would have to be either born in the United States or naturalized in the United States were designations for “Fourteenth-Amendment-first-sentence” citizenship only.160 The category or designation of citizen “at birth” or “by birth” could, however, as expressly noted by the Court, be expanded and “modified by statute” (as it had been in England with respect to natural born subjects for more than 600 years): “We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, the place of birth governs citizenship status except as modified by statute.”161

It is significant to note that in a more recent case, in 2001, the Supreme Court indicated that under current law and jurisprudence a child born to U.S. citizens while living or traveling abroad, and a child born in the geographic United States, had the same legal status. In Tuan Anh Nguyen v. INS,162 the Court explained that a woman who is a U.S. citizen living abroad and expecting a child could re-enter the United States and have the child born “in” the United States, or could stay

156 Afroyim v. Rusk, 387 U.S. 253, 263 (1967). 157 The Supreme Court has warned against interpreting later enacted provisions of the Constitution as amending, merely by implication, separate, earlier provisions of Constitution. Freytag v. Commissioner, 501 U.S. 868, 886-887 (1991). 158 See, e.g., Corwin, THE PRESIDENT, OFFICE AND POWERS, 1787-1984, at 38-39; Gordon, Who Can Be President of the United States: The Unresolved Enigma, 28 MD. L. REV. at 12, 18; Michael Nelson, Constitutional Qualifications for President, PRESIDENTIAL STUDIES QUARTERLY, Vol. XVII, No. 2, at 396; Gordon, Mailman, & Yale-Loehr, IMMIGRATION LAW AND PROCEDURE, Vol. 7, § 92.03[1][b] (rev. ed. 2000). 159 Robinson v. Bowen, 567 F.Supp.2d 1144, 1145-1146 (N.D. Cal. 2008), finding Senator McCain, born in the Panama Canal Zone to citizen-parents, eligible for President as a “natural born citizen.” 160 Rogers v. Bellei, 401 U.S. 815, 827 (1971). 161 401 U.S. at 828. It does not appear to be a significant argument against such interpretation that Congress could indirectly change by statute (by changing “at birth” citizenship requirements) who is eligible to be President, even though qualifications are “fixed” by the Constitution. The Supreme Court has expressly found that Congress could not change the qualifications for congressional office which were fixed in the Constitution (Powell v. McCormack, 395 U.S. 486 (1969)), but since citizenship for seven years (House) or nine years (Senate) is a constitutional qualification, and Congress may certainly change the various statutory requirements for naturalized citizenship, Congress could thus clearly, in effect, change how such qualification is attached in such circumstances. See also Corwin, THE PRESIDENT, OFFICE AND POWERS, 1787-1984, at 38-39, as to the inherent authority and apparent right of the country’s national legislature to determine who its natural born citizens should be. 162 533 U.S. 53 (2001).


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abroad and not travel back to this country and have the child born abroad, and that the child in either case would have the same status as far as U.S. citizenship:

[T]he statute simply ensures equivalence between two expectant mothers who are citizens abroad if one chooses to reenter for the child’s birth and the other chooses not to return, or does not have the means to do so.163

Concerning the contention made in earlier cases that everyone who is made a citizen only by federal statute is a “naturalized” citizen (even those who are made citizens at birth by statute), it may be noted that the common understanding and usage of the terms “naturalized” and “naturalization,” as well as the precise legal meaning under current federal law, now indicate that someone who is a citizen “at birth” is not considered to have been “naturalized.”164 Justice Breyer, for example, dissenting on other grounds in Miller v. Albright, explained that “this kind of citizenship,” that is, under “statutes that confer citizenship ‘at birth,’” was not intended to “involve[ ] ‘naturalization,’” citing current federal law at 8 U.S.C. § 1101(a)(23).165 The Supreme Court recently recognized in Tuan Anh Nguyen v. INS, that federal law now specifically defines “naturalization” as the “conferring of nationality of a state upon a person after birth,”166 and thus it could be argued that by current definition and understanding in federal law and jurisprudence, one who is entitled to U.S. citizenship automatically “at birth” or “by birth” could not be considered to be “naturalized.”

The United States Court of Appeals for the Ninth Circuit has specifically recognized in a recent case that one may be a “natural born” citizen of the United Sates in two ways: either by being born in the United States, or by being born abroad of at least one citizen-parent who has met the residency requirement. In United States v. Carlos Jesus Marguet-Pillado, a case dealing with the propriety of an appeal based on requested jury instructions not given, the court stated:

No one disputes that Marguet-Pillado’s requested instruction was “an accurate statement of the law,” in that it correctly stated the two circumstances in which an individual born in 1968 is a natural born United States citizen: (1) that the person was born in the United States or (2) born outside the United States to a biologically-related United States citizen parent who met certain residency requirements.167

Although the legal cases specifically concerning Senator McCain’s eligibility were generally dismissed for want of subject matter jurisdiction (that is, the lack of legal standing of the plaintiff),168 a federal district court for the Northern District of California did note that Senator McCain would qualify as a citizen “at birth,” and thus was a “natural born” citizen, since he was born “out of the limits and jurisdiction of the United States” to U.S. citizen parents, as provided for in federal nationality statutes in force at the time of his birth.169 The court found that the meaning of the phrase in the nationality statutes in force in 1936 (R.S. § 1993 (1855) and 48 Stat. 797 (1934)), that is, the phrase “born out of the limits and jurisdiction of the United States” to 163 533 U.S. at 61. Emphasis added. 164 Miller v. Albright, 523 U.S. at 480 (Breyer, J. dissenting (on other grounds)); Tuan Anh Nguyen, 533 U.S. at 72. 165 Miller v. Albright, 523 U.S. at 480. 8 U.S.C. § 1101(a)(23) now provides: “The term ‘naturalization’ means the conferring of nationality of a state upon a person after birth, by any means whatsoever.” 166 Tuan Anh Nguyen, 533 U.S. at 72 (emphasis added), citing 8 U.S.C. § 1101(a)(23). 167 United States v. Carlos Jesus Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir. 2011). 168 Hollander v. McCain, 566 F. Supp.2d 63 (D.N.H. 2008); Robinson v. Bowen, 567 F.Supp.2d 1144 (N.D. Cal. 2008). 169 Robinson v. Bowen, 567 F.Supp.2d at 1146.


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citizen parents, was merely the reverse or “converse of the phrase ‘in the United States, and subject to the jurisdiction thereof’” appearing in the citizenship provision of the Fourteenth Amendment, and that such phrase thus would include all those born abroad of two U.S. citizen parents, such as Senator McCain:

Article II states that “No Person except a natural born Citizen, or a Citizen at the time of the Adoption of this Constitution, shall be eligible to the Office of the President.” Article II left to Congress the role of defining citizenship, including citizenship by reason of birth. Rogers v. Bellei, 401 U.S. 815, 828, 91 S.Ct. 1060, 28 L.Ed.2d 499 (1971). Many decades later, the Fourteenth Amendment set a floor on citizenship, overruled the Dred Scott decision, and provided that all born or naturalized in the United States, and subject to the jurisdiction thereof, were citizens by reason of birth (or naturalization proceedings, for that matter). Id. at 829-30, 91 S.Ct. 1060.

At the time of Senator’s McCain’s birth, the pertinent citizenship provision prescribed that “[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States.” Act of May 24, 1934, Pub. L. No. 73-250, 48 Stat. 797. The Supreme Court has interpreted the phrase “out of the limits and jurisdiction of the United States” in this statute to be the converse of the phrase “in the United States, and subject to the jurisdiction thereof,” in the Fourteenth Amendment, and therefore to encompass all those not granted citizenship directly by the Fourteenth Amendment. [United States v. Wong Kim Ark, 169 U.S. 649, 687 (1898) ....] Under this view, Senator McCain was a citizen at birth. In 1937, to remove any doubt as to persons in Senator McCain’s circumstances in the Canal Zone, Congress enacted 8 U.S.C. 1403(a), which declared that persons in Senator McCain’s circumstances are citizens by virtue of their birth, thereby retroactively rendering Senator McCain a natural born citizen, if he was not one already. This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen. Plaintiff has not demonstrated the likelihood of success on the merits necessary to warrant the drastic remedy he seeks. 170

The federal court in Robinson v. Bowen thus implicitly adopted a meaning of the term “natural born” citizen in the presidential eligibility clause which would include not only the narrow “common law” meaning (jus soli, being born geographically in the United States without reference to parental citizenship, as codified in the Fourteenth Amendment), but also the statutory designation by Congress of one entitled to U.S. citizenship “at birth” or “by birth” even if born abroad when such citizenship is transmitted from one’s parent or parents (jus sanguinis).

Legal Cases and President Obama In addition to the lawsuits concerning Senator McCain’s eligibility, there have been several allegations and numerous lawsuits brought challenging the status of President Obama as a “natural born” citizen, based on various theories, assertions, and speculations. These cases have uniformly been summarily dismissed, either because of a lack of jurisdiction of the court—in that the plaintiff or plaintiffs did not have legal standing, or for a failure to state a claim upon which relief could be granted—or because the plaintiff seeking a stay or an injunction against some future event was deemed “not likely to succeed on the merits.”171

170 Robinson v. Bowen, 567 F.Supp.2d at 1145-1146. 171 See, for example, Berg v. Obama, 574 F.Supp.2d 509 (E.D. Pa. 2008), aff’d 586 F.3rd 234 (3rd Cir. 2009), cert. (continued...)


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Some of the cases concerning President Obama, or the candidate then-Senator Obama, had alleged or speculated that the President was not born in the United States, but rather was born in some foreign country or another.172 It should be noted that there is currently no requirement under federal law, nor was there under state law in 2008, for any federal candidate, that is, candidates to the U.S. Senate, the House of Representatives, or the office of President, to publish, produce, or release an official “birth certificate.”173 Under the inclusive democratic tradition within the United States, there has never been any federal officer or bureaucracy which acts as a “gatekeeper” controlling who may be a federal candidate.174 Rather, there is in this country a general legal presumption of eligibility of the adult citizenry to hold political office175 and, as noted as early as 1875 by former U.S. Court of Appeals Judge, and former Member of Congress (and chairman of the Committee on Elections), George W. McCrary, in his book, A Treatise on the American Law of Elections, discussing federal congressional elections, the legal presumption is always of eligibility, and thus the initial burden of proof is always upon those who challenge a candidate’s eligibility, and not on a candidate to “prove” eligibility: (...continued) denied, 129 S.Ct. 920, and app. for stay denied, 129 S.Ct. 1030 (2009); Wrotnowski v. Bysiewicz, Secretary of the State of Connecticut, 958 A.2d 709 (Conn. 2008), app .for stay denied, 129 S.Ct. 775 (2008); Donofrio v. Wells (Secretary of State of New Jersey), Motion No. AM-0153-08T2, app. for stay denied, 129 S.Ct. 752 (2008); Hollister v. Soetoro, 601 F.Supp.2d 179 (D.D.C. 2009); aff’d No. 09-5080 (D.C. Cir. 2009), cert. denied 562 U.S. ___ (Jan. 18, 2011), and rehearing denied, 562 U.S. ___ , No. 10-678 (March 11, 2011); Keyes v. Bowen, Case No. 34-2008-80000096-CU-WM-GDS (Sup. Ct. Cal. March 13, 2009), appeal denied., Ct. of Appeals of Cal., 3rd App. Dist. (C062321, Oct. 25, 2010), review denied., CA Supreme Ct. (Feb. 2, 2011), cert. denied., S.Ct. Docket No. 10-1351 (Oct. 3, 2011); Stamper v. United States, case No. 1:08 CV 2593 (N.D. Ohio 2008); Cohen v. Obama, Civil Action No. 08 2150 (D.D.C. 2008); Barnett, Rhodes, Kerchner v. Obama, 669 F. Supp. 2d 477 (D.N.J. 2009), aff’d 612 F.3d 204 (3rd Cir. 2010), cert. denied, 131 S. Ct. 663 (2010). 172 The importance to some in arguing that President Obama was born outside of the United States is that, given that the President’s father was not a U.S. citizen at the time of the President’s birth, the federal laws then, in 1961, would have required for citizenship “at birth” of one born outside of the United States to only one citizen-parent, that such citizen-parent have resided in the United States for not less than ten years, at least five of which were after the age of fourteen (8 U.S.C. § 1401(a)(7)) (1958 ed.), a requirement that the President’s mother, because of her age, would not have met. 173 Under state ballot access procedures for presidential electors, candidates or the political parties which nominate candidates for the presidency are generally required under the laws of the various states to certify in writing that the candidate is the nominee of the party and is eligible to the office. U.S. Senate, Committee on Rules and Administration, Nomination and Election of the President and Vice President of the United States, 2008, S. Doc. 111-15, at 269-343 (survey of state laws regarding selecting delegates to the national nominating conventions), and 347-428 (“Summary of State Laws Relating to Presidential Electors”) (2010). 174 See, e.g., Federal Election Commission, Advisory Opinion 2011-15, September 2, 2011. The so-called “vetting” of a candidate for elected federal office conducted by a federal bureaucracy or official as a prerequisite to run for office is alien to and unknown in the American democratic tradition. “Vetting” of candidates under the open democratic process and tradition in this country is a multi-step, and often grueling public process of meeting state ballot access requirements, facing opposition research by contestants for one’s own party nomination in primaries, by political opponents from other parties in the general election, and examination by an independent press, media, and the public. See Hollister v. Soetoro, 601 F.Supp. 2d 179, 180 (D.D.C. 2009), aff’d 368 Fed. Appx. 154 (D.C. Cir. 2010), cert. denied, 131 S.Ct. 1017 (2011); Rhodes v. MacDonald, 670 F.Supp.2d 1363, 1377 (M.D.Ga. 2009), aff’d, Rhodes and Taitz v. MacDonald, 368 Fed. Appx. 949 (11th Cir. 2010), cert. denied, Taitz v. MacDonald, 131 S.Ct. 918 (2111). The final procedure of counting the electoral votes for President, challenging any electoral votes, and certifying the electoral result is conducted by Congress under the Twelfth Amendment and the procedures of the Electoral Count Act of 1887, 24 Stat. 373, ch. 90, 49th Cong., February 3, 1887. See now 3 U.S.C. §§ 3-21. See generally CRS Report RL32717, Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress, by Jack Maskell and Elizabeth Rybicki. 175 Chief Judge Posner of the United States Court of Appeals for the 7th Circuit noted, in another context, in Herman v. Local 1011, United States Steelworkers of America, 207 F.3d 924, 925 (7th Cir. 2000): “The democratic presumption is that any adult member of the polity ... is eligible to run for office. U.S. Term Limits, Inc .v. Thornton, 514 U.S. 779, 793-95, 819-20 (1995); Powell v. McCormack, 395 U.S. 486, 547 (1969).”


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The presumption always is, that a person chosen to an office is qualified to fill it, and it is never incumbent upon him to prove his eligibility. The certificate of election does not add to this presumption, but simply leaves it where the law places it, and he who denies the eligibility of a person who is certified to be elected, must take the burthen of proving that he is not eligible.176

Despite the absence of formal administrative or legal requirements to produce a “birth certificate” for ballot placement of federal candidates, and despite the fact that under the long-standing principles of American jurisprudence, and U.S. democratic tradition, the clear burden of proof must be upon those who challenge a federal candidate’s eligibility, it may be noted that the only official documentation or record that had been publicly forwarded in the matter of President Obama’s eligibility at the time of the 2008 election was an official, certified copy of the record of live birth released by the Obama campaign in June of 2008, as an apparent effort by then-candidate Obama to address rumors and innuendos concerning both his middle name as well as the place of his birth.177 The copy of this certificate states on its face, as expressly certified by Hawaii health and vital records personnel, that Barack Obama was born in Hawaii, in the City of Honolulu on the Island of Oahu, at 7:24 P.M. on August 4, 1961.178 Under Hawaii law, an officially certified copy of such health record is to be considered “for all purposes the same as the original,”179 and is “prima facie” evidence of the facts asserted.180

Subsequent to that release in 2008, President Obama requested in writing from the State of Hawaii an exception to the public records laws and regulations of the State of Hawaii so that the Department of Health could release to the President a certified copy of his original, so-called “long form” certificate of live birth. The official certified copy was shown to reporters at a press conference in the White House, and a scanned copy of the document was posted for public

176 George W. McCrary, A TREATISE ON THE AMERICAN LAW OF ELECTIONS, at 249-250 (1875, Fourth ed. by Henry L. McCune, 1897). The word “burthen” is a now-archaic variation of the word “burden.” See also qualifications case regarding Member-elect Michalek in the U.S. House of Representatives, where affidavits and petitions signed by 125 citizens claimed that the Member-elect was not a citizen. When inquiry was made, complainants provided no actual evidence or proof of non-citizenship, and the matter was dismissed by the House without even requiring the Member-elect to respond or to provide a defense, as the complainants did not meet the required burden of proof to move forward. 1 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, §§ 426, 427, pp. 406-413 (1907). 177 A scanned copy of the certified COLB was “released” by the Obama campaign and made available on the candidate’s website (http://fightthesmears.com/articles/5/birthcertificate). The campaign invited non-partisan, independent organizations involved in public policy and the political process to examine the certificate, including “factcheck.org,” a project of the University of Pennsylvania’s Annenberg Public Policy Center. See discussion at http://www.factcheck.org/elections-2008/print_born_in_the_usa.html, and the St. Petersburg Times’ “Politfact.com,” which describes itself as “a project of the St. Petersburg Times to help you find the truth in politics” (“Obama’s birth certificate: Final chapter”: http://www.politifact.com/truth-o-meter/article/2008/jun/27/obamas-birth-certificate-part-ii). 178 In addition to the certification that the document is a “true copy” of the birth records on file, official personnel of the State of Hawaii have affirmed, in official statements, that such records were on file at the Department of Health, and show President Obama’s birth in Hawaii, as certified. Hawaii Department of Health, News Release, “Statement by Dr. Chiyome Fukino,” October 31, 2008, http://hawaii.gov/health/about/pr/2008/08-93.pdf; and statement of Dr. Fukino, Hawaii Department of Health, at http://hawaii.gov/health/about/pr/2009/09-063.pdf. See also testimony of the Director of Health before the Senate Committee on Judiciary and Government Operations, on SB 2937SD1, Relating to Information Practices, March 16, 2010. Note also Honolulu Star-Bulletin, “Officials verify birth certificate of Obama,” November 1, 2008, and see contemporaneous newspaper announcements of Obama birth in August of 1961 in Honolulu, The Sunday Advertiser, “Health Bureau Statistics,” p. B-6, August 13, 1961 (a scanned copy of this announcement appears at http://the.honoluluadvertiser.com/dailypix/2008/Nov/09/hawaii811090361V3_b.jpg), and the Honolulu Star-Bulletin, August 14, 1961, based on health records forwarded by the hospital to the newspapers. 179 Hawaii Revised Statutes Ann., § 338-13. 180 Hawaii Revised Statutes Ann., § 338-41(b).


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viewing on the White House website on April 27, 2011.181 The Department of Health of the State of Hawaii cites on its official website to the White House posting of the President’s birth certificate as the document that the state certified and delivered.182

It should be noted that both documents from the State of Hawaii, that is, the so-called “short-form” Certification of Live Birth [the “COLB”], or the certified copy of the longer form certificate of live birth, according to the official declarations of officers of the State of Hawaii, have been officially certified by the state, and are therefore “self-authenticated documents” under Federal Rules of Evidence,183 as well as “public records” of that state. Under the United States Constitution, a public record of a state is required to be given “full faith and credit” by all other states in the country.184 Even if a state were to require its election officials for the first time ever to receive a “birth certificate” as a requirement for a federal candidate’s ballot placement, a document certified by another state, such as a “short form” birth certificate, or the certified long form, would be required to be accepted by all states under the “full faith and credit” clause of the United States Constitution.185

With respect to any actual contrary evidence, it may be noted briefly that there appear to be no legitimate, official documentary records, or copies of such records, which have been produced or forwarded contradicting the prima facie record of President Obama’s birth in Hawaii, as provided in the official certification (or certificate) of live birth released by the Obama campaign in 2008 and attested to by Hawaii Department of Health officials, or the certified copy of the “long form” birth certificate publicly shown and released on April 27, 2011. No verified, official record of birth from any other jurisdiction or country has been produced; no contradictory health record or hospital record has been forwarded; and no official record of travel (such as a passport record) appears to exist placing President Obama’s mother in a foreign country at the time of the President’s birth. A federal court has found with respect to birth records that “a record of birth contemporaneously made by governmental authority in official records would be almost conclusive evidence of birth.”186 As expressly verified by Hawaiian officials, and as officially 181 http://www.whitehouse.gov/blog/2011/04/27/president-obamas-long-form-birth-certificate; and http://www.whitehouse.gov/sites/default/files/rss_viewer/birth-certificate-long-form.pdf. (Last visited on the date of this report). The documents released at that time also include letters to the Hawaii Department of Health requesting a certified copy of the original certification of live birth, and an official correspondence from the Hawaii Department of Health to the President regarding the copying and certification of the document. 182 http://hawaii.gov/health/vital-records/obama.html (Last visited on date of this report). 183 Federal Rules of Evidence (2010), Rule 901(b)(7) and 902. 28 U.S.C. app. Rule 902, see also Notes of Advisory Committee on Proposed Rules, Rule 902. The state certification in itself thus provides the proof of authenticity of the document, and verifies the records on file with the state. 184 U.S. CONST., art. IV, § 1; see 28 U.S.C. § 1739, applying to all “nonjudicial records or books kept in any public office of any State, Territory , or Possession of the United States, or copies thereof ....” 185 It may be noted that the Certification of Live Birth from Hawaii is a “birth certificate” under the uniform identification standards promulgated in federal law for all federal agencies. See P.L. 108-458, “Intelligence Reform and Terrorism Prevention Act of 2004,” title VIII, § 7211(a), 118 Stat. 3825 (2004), amending P.L. 104-208, Div. C, “Illegal Immigration Reform and Immigrant Responsibility Act of 1996,” title VI, § 656, 110 Stat. 3009-716 (1996), now codified at 5 U.S.C. § 301, note, setting out uniform federal standards for “identification-related documents.” Federal law under these provisions now expressly defines a “birth certificate” as a certificate of birth for a citizen or national of the United States whose birth is registered in this country and is issued by a “State or local government agency or authorized custodian of record and produced from birth records maintained by such agency or custodian of record.” A “birth certificate” thus does not need to be, and is generally not, the “original” record (which is now, more often than not, maintained electronically), but is rather a certified copy based on and produced from such health records “maintained” by the state or locality. 186 Liacakos v. Kennedy, 195 F. Supp. 630, 631 (D.D.C. 1961).


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certified on the documents produced by the State of Hawaii, such contemporaneous official record of birth in Hawaii exists.187 The federal court in Liacakos v. Kennedy found that with no official foreign contemporaneous documentation, even a “delayed birth certificate” produced by the plaintiff, issued by the State of West Virginia 46 years after the alleged birth there, would provide prima facie evidence of “natural born citizenship.”188 That prima facie evidence, un-rebutted by any official foreign documentation, along with collateral evidence of self-assumed and asserted U.S. citizenship, would thus be conclusive and establish “natural born” status by a “fair preponderance of the evidence.”189 In the case of President Obama, rather than any actual contrary documentary evidence, there have instead been several “theories,” allegations, rumors, and self-generated “doubts” and “questions” concerning the place and circumstances of President Obama’s birth which, as noted in court decisions, have been posited on the Internet and “television news tabloid[s],” and upon which a number of the lawsuits were based.190

It may be noted that in addition to court dismissals based on lack of jurisdiction because of the failure of the plaintiff to show “standing” or to state a claim upon which relief may be granted, several of the cases regarding President Obama’s “eligibility” were dismissed on the basis of the lack of subject matter jurisdiction because, as noted by the United States Court of Appeals for the 10th Circuit, for example, the plaintiff’s alleged claim was “wholly insubstantial and frivolous” such that “federal jurisdiction is not extant.”191 Similarly, in Stamper v. United States, the United States District Court noted in dismissing an “eligibility” challenge of President Obama, that a federal court may dismiss a complaint “for lack of subject matter jurisdiction” when the “allegations of a complaint are totally implausible, attenuated, unsubstantial, frivolous, devoid of merit or no longer open to discussion,” and in dismissing the case found that the court “is not required to accept unwarranted factual inferences.”192 The United States Court of Appeals for the Third Circuit in Berg v. Obama, in upholding the lower court’s dismissal of plaintiff/counsel Berg’s case, also noted “the obvious lack of any merit in Berg’s contentions ...,”193 and in Kerchner v. Obama, ruled that “[b]ecause we have decided that this appeal is frivolous, we will

187 See footnotes 178, and 181-182 of this Report. 188 195 F.Supp. at 632-633. 189 195 F.Supp. at 634. 190 Berg v. Obama, 574 F.Supp.2d 509, 513 (E.D. Pa. 2008), aff’d 586 F.3rd 234 (3rd Cir. 2009), cert. denied, 129 S.Ct. 920 (2009), noting plaintiff’s reliance on various sources of allegations, including a “television news tabloid.” See also dismissal of cases against the Ohio Secretary of State, Neal v. Brunner, Wayne Common Pleas case # 08CV72726; and Greenberg v. Brunner, Wood Common Pleas case # 08CV 1024. In the Neal case, as reported in The Cincinnati Inquirer, October 31, 2008, the judge stated: “The onus is upon one who challenges such public officer to demonstrate an abuse of discretion by admissible evidence – not hearsay, conclusory allegations or pure speculation .... It is abundantly clear that the allegations in Plaintiff’s complaint concerning ‘questions’ about Senator Obama’s status as a ‘natural born citizen’ are derived from Internet sources, the accuracy of which has not been demonstrated to either defendant Brunner or this magistrate.” The basis of some of the “questions” raised in lawsuits appear to be the mere fact of the existence of other similar lawsuits, as well as disputed third-party statements. Berg, supra at 513; Keyes v. Bowen, Case No. 34-2008-80000096-CU-WM-GDS, slip op. at 4 (Sup. Ct. Cal. March 13, 2009). 191 “Where a complaint seeks recovery directly under the Constitution or the laws of the United States, an exception to subject matter jurisdiction lies when ‘such claim is wholly insubstantial and frivolous.’ ... Having carefully reviewed Mr. Craig’s amended complaint, we find it is ‘very plain,’ Baker, 369 U.S. at 199, that his ‘alleged claim under the Constitution or federal statu[t]es’ falls within this ‘wholly insubstantial and frivolous’ category such that federal jurisdiction is not extant.” Craig v. United States, 340 Fed. Appx. 471, 473-474 (10th Cir. 2009), cert. denied, 130 S.Ct. 141 (2009). 192 Stamper v. United States, Case No. 1:08 CV 2593 (N.D. Ohio November 4, 2008), Slip op. at 4 , 7 (citing to Apple v. Glenn, 183 F.3d 477,479 (6th Cir. 1999) and Hagans v. Lavine, 415 U.S. 528, 536-37 (1974)). 193 Berg v. Obama, 586 F.3d at 239.


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order counsel for Appellants to show cause why just damages and costs should not be imposed.”194

In dismissing eligibility cases some federal courts have gone so far as to find “Rule 11” violations by plaintiff’s counsel.195 A federal district court in Georgia fined plaintiff’s counsel $20,000 for a “Rule 11” violation, that is, for filing “frivolous” motions and for “using the federal judiciary as a platform to espouse controversial political beliefs rather than as a legitimate forum for hearing legal claims.”196 In the United States District Court for the District of Columbia, in dismissing another challenge to the President’s “eligibility” by an attempt to press an “interpleader” claim, the judge ordered plaintiff’s counsel to “show cause” why he should not be fined under Rule 11 for frivolous filings, and eventually “reprimanded” the counsel for filing a frivolous lawsuit.197

Allegations of Loss of Citizenship

In some of the cases filed, plaintiffs have argued that even if President Obama had been born in Hawaii, the move to Indonesia by his mother with him at the time he was a minor in some way “nullified” the citizenship “at birth” status of President Obama, even though as a minor he moved back to and resided within the United States.198 It should be noted, however, that the Supreme Court has clearly ruled that a citizen at birth, such as one born “in” the United States, does not forfeit his or her citizenship-at-birth status because of removal as a minor to a foreign country, even a country in which one or both parents are or become citizens and nationals. Rather, citizenship may only be forfeited by a citizen of the United States by an affirmative action of renunciation by one having the capacity to do so (that is, as an adult):

It has long been a recognized principle in this country that if a child born here is taken during minority to the country of his parents’ origin, where his parents resume their former allegiance, he does not thereby lose his citizenship in the United States provided that on attaining majority he elects to retain that citizenship and to return to the United States to assume its duties. ...

194 Kerchner v. Obama, 612 F.3d 204, 209 (3rd Cir. 2010). Damages were not assessed, but Appellants were ordered to pay costs. Judgment, Kerchner v. Obama, No. 09-4209, Document: 003110204065 (July 2, 2010). 195 The Federal Rules of Civil Procedure, at Rule 11(b)(2) require that in signing briefs and complaints to the court, an attorney represents that “the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.” 196 Rhodes v. MacDonald, 670 F.Supp.2d 1363, 1378-1380 (D.M.Ga. 2009), aff’d, Rhodes and Taitz v. MacDonald, 368 Fed. Appx. 949 (11th Cir. 2010), cert. denied, Taitz v. MacDonald, 131 S.Ct. 918 (2111): “The absolute absence of any legitimate legal argument, combined with the political diatribe in her motions, demonstrates that [counsel’s] purpose is to advance a political agenda and not to pursue a legal cause of action. Rather than citing to binding legal precedent, she calls the President names, accuses the undersigned of treason, and gratuitously slanders the President’s father. As the Court noted in an earlier order, counsel’s wild accusations may be protected by the First Amendment when she makes them on her blog or in her press conferences, but the federal courts are reserved for hearing genuine legal disputes, not as a platform for political rhetoric and personal insults. ... The Court finds that counsel’s conduct was willful and not merely negligent. ... Her response to the Court’s show cause order is breathtaking in its arrogance and borders on delusional. ... Her initial complaint was legally frivolous. Upon being so informed, counsel followed it with a frivolous motion for reconsideration. In response to the Court’s show cause order, she filed a frivolous motion to recuse.” 197 Holister v. Soetoro, memorandum order, 258 F.R.D. 1 (D.D.C. March 24, 2009), aff’d 368 Fed. Appx. 154 (D.C. Cir. 2010) (consolidated with 09-5161), cert. denied, 131 S.Ct. 1017 (2011). 198 Berg v. Obama, 574 F.Supp.2d at 513.


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Expatriation is the voluntary renunciation or abandonment of nationality and allegiance. [footnotes omitted] It has no application to the removal from this country of a native citizen during minority. In such a case the voluntary action which is of the essence of the right of expatriation is lacking.199

The Supreme Court in a subsequent decision, in Mandoli v. Acheson in 1952, confirmed the meaning of its earlier decision in Perkins v. Elg, explaining:

What it [Perkins v. Elg] held was that citizenship conferred by our Constitution upon a child born under its protection cannot be forfeited because the citizen during nonage is a passive beneficiary of foreign naturalization proceedings....200

The Supreme Court concluded in that case: “[W]e think the dignity of citizenship which the Constitution confers as a birthright upon every person born within its protection is not to be withdrawn or extinguished by the courts except pursuant to a clear statutory mandate.”201 Simply stated, the Supreme Court noted that to expatriate and forfeit one’s U.S. citizenship “there must be a voluntary action and such action cannot be attributed to an infant whose removal to another country is beyond his control and who during minority is incapable of a binding choice.”202

Assertion of Two Citizen-Parent Requirement

Other lawsuits, which were also summarily dismissed, alleged that even if President Obama had been born in Hawaii, he was not a “natural born” citizen because his father was not a U.S. citizen, but rather was a citizen of Kenya and therefore a British subject. It was argued that President Obama at birth would thus have been entitled to British citizenship by operation of British laws. As one who had or was entitled to “dual citizenship,” it was argued that President Obama could not be a “natural born citizen” of the United States.203 This argument would also entail the unique notion that under American jurisprudence parental citizenship or lineage is the determining factor for eligibility to the Presidency for native born U.S. citizens.

Dual Citizenship. Merely because a child born within the United States could have, under the operation of foreign law, been a citizen also of that foreign nation because of a parent’s nationality, citizenship, or place of birth (i.e., “dual citizenship”), would not affect the status of that child as a U.S. citizen “at birth” under the Fourteenth Amendment, the federal nationality laws, nor under Article II of the Constitution. The citizenship laws, rights, or recognitions of other nations could not influence and impact the United States’ own determination of who its citizens “at birth” would be, that is, who would be a “natural born” citizen, as the question of

199 Perkins v. Elg, 307 U.S. 325, 329, 334 (1939). See also Rogers v. Bellei, 401 U.S. 815, 835 (1971): : “... Congress has no ‘power, express or implied, to take away an American citizen’s citizenship without his assent.’ Afroyim v. Rusk, 387 U.S., at 257.” 200 344 U.S. 133, 138-139 (1952). 201 Id. at 139. 202 Perkins v. Elg, 307 U.S. at 334. 203 See, e.g, .arguments in Donofrio v. Wells, No. 08A407, Application for Emergency Stay to the United States Supreme Court, contending that “candidate Obama is not eligible to the Presidency as he would not be a ‘natural born citizen’ of the United States even if it were proven he was born in Hawaii, since ... Senator Obama’s father was born in Kenya and therefore, having been born with split and competing loyalties, candidate Obama is not a ‘natural born citizen’ ....” See also Berg v. Obama, 574 F.Supp.2d at 513.


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citizenship and categories of citizenship are a function of “municipal law”—the internal law of every country, as opposed to matters of international law or foreign law.204

If allowing the recognition of citizenship under the law of foreign nations were determinative of natural born citizenship in the United States—as now argued by some advocates—then the operation of foreign law would, in effect, impact and be determinative of who is eligible to be President of the United States, a result wholly at odds with U.S. national sovereignty, that is, the “inherent right of every independent nation” to determine what classes of persons are to be its citizens.205 As explained by the Supreme Court in 1939:

On her birth in New York, the plaintiff became a citizen of the United States. ... In a comprehensive review of the principles and authorities governing the decision in that case—that a child born here of alien parentage becomes a citizen of the United States—the Court adverted to the “inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.” United States v. Wong Kim Ark, supra, p. 668. As municipal law determines how citizenship may be acquired, it follows that persons may have a dual nationality. [footnotes omitted] And the mere fact that the plaintiff may have acquired Swedish citizenship by virtue of the operation of Swedish law, on the resumption of that citizenship by her parents, does not compel the conclusion that she lost her own citizenship acquired under our law.206

The fact that a foreign country might recognize or allow a claim of dual citizenship or nationality of a child born in the United States because of the nationality or heritage of the child’s mother or father, has never been determinative of “natural born” or other citizenship status in any case in American jurisprudence. The Court in Perkins v. Elg explained that dual nationality of a child does not affect the native-born status of a child born in the United States, and cited with approval an opinion of the Attorney General finding that a “native-born American citizen,” even one with “dual citizenship,” who returns to the United States would qualify to be President:

One Steinkauler, a Prussian subject by birth, emigrated to the United States in 1848 ... and in the following year had a son who was born in St. Louis. Four years later Steinkauler returned to Germany taking this child and became domiciled in Weisbaden where they continuously resided.... On reviewing the pertinent points in the case, including the naturalization treaty of 1868 with North Germany, the Attorney General reached the following conclusion:

“Young Steinkauler is a native-born American citizen. There is no law of the United States under which his father or any other person can deprive him of his birthright. He can return to America at the age of twenty-one, and in due time, if the people elect, he can become President of the United States ... [even though] the father, in accordance with the treaty and the laws, has renounced his American citizenship and his American allegiance and has acquired for himself and his son German citizenship and the rights which it carries....”207

Citizenship of Parents. Concerning specifically the reading into the Constitution of a two-citizen-parent requirement for “natural born” citizenship status, it should be noted that there is,

204 United States v. Wong Kim Ark, 169 U.S. at 668; Perkins v. Elg, 307 U.S. at 329; see also Frederick Van Dyne, CITIZENSHIP OF THE UNITED STATES, at 3-4 (New York 1904). 205 Wong Kim Ark, 169 U.S. at 668. 206 Perkins v. Elg, 307 U.S. at 329. 207 Perkins v. Elg, 307 U.S. at 330.


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significantly, no historical nor controlling legal holding in American jurisprudence to support the argument that parental citizenship governs and controls the eligibility of a native born U.S. citizen to be President. As indicated in the discussion of the history of the constitutional provision, there is also no justification for this unique theory, which would exclude an entire class of native born U.S. citizens from eligibility for the Presidency, in any of the statements or writings of the framers of the Constitution, or in the entire record of the ratification debates of the United States Constitution.208

In 1825, in a significant and widely recognized work on the Constitution, William Rawle specifically noted that the term “natural born citizen” as used in the Constitution would include “every person born within the United States ... whether the parents are citizens or aliens....”209 Similarly, in his treatise on Citizenship of the United States, Frederick Van Dyne, Assistant Solicitor of the Department of State, explained in 1904 that the rule governing citizenship is not one derived from “international law” or the so-called “law of nations,” but is rather municipal law which “[e]very nation determines for itself’ and, in the United States, derives from the common law principle of jus soli, dependant “on the place of birth,” as modified by statute incorporating the principles of jus sanguinis to include the children of citizens “born out of the jurisdiction of the United States.”210 In reviewing Supreme Court decisional material, the author in this treatise noted that the Fourteenth Amendment and the 1866 civil rights act “reaffirm the fundamental principle of citizenship by birth” which “was generally held to be regulated by the common law, by which all persons born within the limits and allegiance of the United States were deemed to be natural born citizens thereof.”211

Although the Supreme Court has never had to address the issue of “natural born” citizenship directly in the context of a challenge to the eligibility of one to be President, the federal courts have discussed the concept on numerous occasions for more than 200 years and have, other than in the Dred Scott decision, consistently relied upon the place of birth, without regard or reference to the status of one’s parents, as the determining factor of natural born citizenship. In a celebrated state court ruling, in 1844, providing a detailed explanation of the legal history of the citizenship

208 As an historical matter it may be noted that Chester A. Arthur, 21st President of the United States, was apparently born in the United States (despite rumors being spread by opponents that he was born in Canada) in 1829 to a U.S. citizen-mother and a father who was not a U.S. citizen, but rather a citizen of Ireland and a British subject, although there have been assertions by some that this fact was not widely known at the time. See Thomas Reeves, GENTLEMAN BOSS: THE LIFE OF CHESTER ALAN ARTHUR, 202-203 (1975)). There was also a question raised concerning Charles Evans Hughes, Republican candidate for President who narrowly lost to Woodrow Wilson in 1916, and who was born in the United States to parents who were British subjects. Note Medina, The Presidential Qualifications Clause, supra at 267, n. 72, citing to Long, Is Mr. Charles Evans Hughes a “Natural Born Citizen” Within the Meaning of the Constitution? 49 CHIC. LEGAL NEWS 146 (1916). Although a question was raised by this individual at the time of Hughes’ candidacy, it did not appear to be an issue of any significance for Hughes or other presidential or vice-presidential candidates who were born in the U.S. of recent immigrants, as the “two-citizen-parent” argument with respect to native born U.S. citizens has not garnered serious legal consideration after Wong Kim Ark in 1898. The question did not appear to merit even a mention in the definitive, two-volume biography of Hughes. Merlo J. Pusey, CHARLES EVANS HUGHES, 316-366 (New York 1963). 209 William Rawle, A VIEW OF THE CONSTITUTION THE UNITED STATES OF AMERICA, at 80 (1825). 210 Frederick Van Dyne, CITIZENSHIP OF THE UNITED STATES, at 3-4 (New York 1904). 211 Id. at 4, 12. Emphasis added. Van Dyne explained in his treatise on citizenship that children born in the United States, even of alien parents (other than for the exceptions of diplomats and hostile troops) are natural born citizens of the United States, and distinguished as mere obiter dictum contrary comments on “jurisdiction” by the Court in The Slaughter House Cases, 16 Wall. (83 U.S.) 36, 73 (1872) which, even by 1904, had been shown to be no longer controlling as to those points. Id. at 12-23.


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laws and statutes in the United States, the following conclusion was provided with respect to natural born citizenship:

Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.212

That the place of birth was the rule governing “natural born” citizenship under American jurisprudence, regardless of the status of one’s parents (except for children of official diplomats or hostile armies), even before the adoption of the Fourteenth Amendment, was explained by the Supreme Court in United States v. Wong Kim Ark, in 1898, which noted that the Fourteenth Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children born here of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory ....”213 The Supreme Court in Wong Kim Ark cited with approval those previous judicial rulings which held that every child born on the soil of the United States, and subject to its jurisdiction, are “natural born” citizens of this country, without regard to the nationality or citizenship status of their parents.214 The Supreme Court, this time using the term “native born citizen” again explained in that case:

Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States. 215

As discussed previously, the Supreme Court has used the term “native born” citizens (as expressly used in Wong Kim Ark to mean those born in the United States “whether children of citizens or foreigners”) as synonymous with, or at least included within the term “natural born,” in subsequent references to eligibility to the Presidency. In United States v. Schwimmer, for example, the Court stated: “Except for eligibility to the Presidency, naturalized citizens stand on the same footing as do native born citizens”216 Similarly, in Luria v. United States the Supreme Court stated: “Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency,”217 and noted in 1931 that other than the one instance in the Constitution which provides a difference, that is, the eligibility to the Presidency, “[t]he alien, when he becomes a naturalized citizen, acquires, with one exception, every right possessed under the Constitution by those citizens who are native born.”218

212 Lynch v. Clarke, 3 N.Y. Leg. Ob. 236, 250 (1844). Emphasis added. 213 169 U.S. at 693. 214 169 U.S. at 662-663, citing United States v. Rhodes, 27 Fed. Case 785 (No. 16151) (C.C. Ky. 1866), and Lynch v. Clark. 215 169 U.S. at 674-675. Emphasis added. Note that the dissent in Wong Kim Ark stated that under the majority’s controlling decision, a child born to alien parents in the United States “whether of the Mongolian, Malay or other race, were eligible to the Presidency ....” 169 U.S. at 715 (Fuller, C.J. and Harlan, J. dissenting). 216 279 U.S. 644, 649 (1929). 217 231 U.S. 9, 22 (1913). 218 United States v. MacIntosh, 283 U.S. at 623-624. See also Baumgardner v. United States, 322 U.S. 665, 673 (1944), (continued...)


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With regard to the citizenship of children born in the United States to recent immigrants, it is significant to note that in this country in the late 1800’s, the public’s economic fears and hostility to foreigners led Congress to—in the words of one historian—“legitimize[ ] racism as national policy”219 by adopting legislation to prevent immigration of Chinese laborers to the United States, and to prohibit anyone of Chinese nationality to obtain U.S. citizenship through naturalization.220 Despite this law and its extensions, commonly known as the Chinese Exclusion Acts, the federal courts continually and consistently held that children born “in” the United States of Chinese nationals were “natural born” citizens of the United States, even though the parents were not, and could never be, U.S. citizens themselves under the exclusion laws. In one case concerning the identity of a petitioner, the Supreme Court of the United States explained that “[i]t is not disputed that if petitioner is the son” of two Chinese national citizens who were physically in the United States when petitioner was born, then he is “a natural born American citizen ....”221 Similarly, in 1919, the United States Court of Appeals for the 5th Circuit ruled that the appellee, based solely on the fact that he was born in San Francisco, without any reference to the nationality of his parents, “is a natural-born citizen of the United States.”222

In a case that preceded the Supreme Court’s Wong Kim Ark decision, the United States Court of Appeals agreed with the petitioner’s claim to be “a natural-born citizen of the United States” because of his place of birth, that is, within the United States, even though his parents were both “aliens” of Chinese nationality who were in the United States privately and “not here in any diplomatic or other official capacity under the emperor of China.”223 That federal court in 1884, relying on precedents including Assistant Vice-Chancellor Lewis Sandford’s opinion in Lynch v. Clarke, explained the concept in American jurisprudence that one is a “natural born” citizen when born in the United States, and subject to the jurisdiction of the United States,224 and that such was the state of American law even before the adoption of the Fourteenth Amendment (for other than those brought into the United States under slavery):

(...continued) and Schneider v. Rusk, 377 U.S. 163, 165 (1963). Furthermore, as discussed previously, noted constitutional scholars have also used the term “native born” citizen as a short-hand device to mean those born in the United States, without reference to lineage or ancestry, concerning those who are eligible to the presidency. Kent, COMMENTARIES ON AMERICAN LAW, supra at 273; Story, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES, at § 271, p. 167; St. George Tucker, William Blackstone, BLACKSTONE’S COMMENTARIES: WITH NOTES AND REFERENCE TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND OF THE COMMONWEALTH OF VIRGINIA, Vol. I, App., at 323; 7 Gordon, Mailman, & Yale-Loehr, IMMIGRATION LAW AND PROCEDURE, at §§ 91.02[4][a] and § 91.02[4][c]. 219 Andrew Gyory, CLOSING THE GATE: RACE, POLITICS, AND THE CHINESE EXCLUSION ACT, at 1-2, 16 (UNC Press 1998). 220 22 Stat. 58, May 6, 1882. The original restrictions were to run for 10 years, but were extended another 10 years by the so-called Geary Act in 1892 (27 Stat. 25, May 5 1892), and then made permanent in 1902. The Chinese exclusion acts were repealed in 1943 (57 Stat. 600, December 13, 1943). 221 Kwok Jan Fat v. White, 253 U.S. 454, 457 (1920). The Supreme Court also noted there: “It is better that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country.” 253 U.S. at 464. 222 U.S. v. Low Hong, 261 F. 73, 74 (5th Cir. 1919). 223 In re Look Tin Sing, 21 F. 905, 906 (Cal. Cir. 1884). 224 That is, when the laws and jurisdiction of the United States are applicable to such person: “They alone are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, and with the consequent obligation to obey them when obedience can be rendered ….” 21 F. at 906.


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Independently of the constitutional provision, it has always been the doctrine of this country, except as applied to Africans brought here and sold as slaves, and their descendants, that birth within the dominions and jurisdiction of the United States of itself creates citizenship. This subject was elaborately considered by Assistant Vice-chancellor SANDFORD in Lynch v. Clarke, found in the first volume of his reports. [1 Sandf. 583.] In that case one Julia Lynch, born in New York in 1819, of alien parents, during their temporary sojourn in that city, returned with them the same year to their native country and always resided their afterwards. It was held that she was a citizen of the United States. After an exhaustive examination of the law the vice-chancellor said that he entertained no doubt that every person born within the dominions and allegiance of the United States, whatever the situation of his parents, was a natural-born citizen, and added that this was the general understanding of the legal profession, and the universal impression of the public mind.225

More recent federal cases expressly recognize the principle explained in the nineteenth century and early twentieth century cases that one born in the United States and under its jurisdiction, even when one or both parents were “aliens,” is considered a citizen of the United States by birth, and thus a “natural born” citizen of the United States. The court in Dos Reis ex rel. Camara v. Nicolls, for example, accepted the findings of fact that “The relator was born in the City of Fall River, Massachusetts, on December 31, 1921. His father was a native and citizen of Portugal, and his mother was a native of Brazil,” and that, as found by the Commissioner of Immigration and Naturalization, affirming the decision of the Board of Special Inquiry, “that the relator was a natural-born citizen....”226 In Loo Goon Hop v. Dulles, the court found that a person “having been born in this country,” without any reference to, finding, or identification of the citizenship of that person’s parents, is a “natural born citizen of the United States.”227 In Yamauchi v. Rogers, the federal court in reciting “findings of fact and conclusions of law,” found that the plaintiff, born in California of a “Japanese national” who had married another “Japanese national,” “is a natural born citizen of the United States....”228 In Diaz-Salazar v. INS, the court there noted that children born in the United States, even to an “illegal” (or undocumented) alien father, “are natural-born citizens of the United States.”229 Similarly, in Mustata v. U.S. Department of Justice, the United States Court of Appeals, in reciting the facts of the case, noted: “Petitioners Marian and Lenuta Mustata are citizens of Romania. At the time of their petition, they resided in Michigan with their two minor children, who are natural born citizens of the United States.”230

In 2008, a U.S. district court discussed the concept of “natural born” citizenship specifically with respect to the eligibility to be President as applying, since the founding of the Nation, to all who were born in and subject to the jurisdiction of the United States:

Those born “in the United States, and subject to the jurisdiction thereof,” U.S. Const., amend. XIV, have been considered American citizens under American law in effect since the

225 21 F. at 909. Emphasis added. 226 68 F.Supp. 773, 774 (D.Mass. 1946). The court there found that even as a natural born citizen, an individual such as relator could expatriate himself under the operation of the existing federal law by performing acts indicating the “voluntary renunciation or abandonment of nationality and allegiance,” such as voluntarily serving in a foreign army. 227 119 F.Supp. 808 (D.D.C. 1954): “It is not denied that the person who it is claimed is the plaintiff’s father is a natural born citizen of the United States, having been born in the country.” 228 181 F. Supp. 934, 935-936 (D.D.C. 1960). 229 700 F.2d 1156, 1160 (7th Cir. 1982), cert. denied, 462 U.S. 1132 (1983). 230 179 F.3d 1017, 1019 (6th Cir. 1999). Emphasis added. See also United States v. Carlos Jesus Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir. 2011), agreeing with the underlying legal accuracy of proposed jury instruction defining “natural born citizen” as including one born in the United States, without reference to the citizenship of one’s parents.


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time of the founding, United States v. Wong Kim Ark, 169 U.S. 649, 674-75, 18 S.Ct. 456, 42 L.Ed. 890 (1898), and thus eligible for the presidency, see, e.g., Schneider v. Rusk, 377 U.S. 163, 165, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964)(dicta).231

Similarly, in dismissing an eligibility case concerning President Obama’s birth in Hawaii, a state appellate court in Indiana, after a thorough review of federal case law, concluded that anyone born in the United States and subject to its jurisdiction, regardless of the citizenship of that person’s parents, was a “natural born” citizen eligible to be President:

Based on the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents. Just as a person “born within the British dominions [was] a natural born-born subject” at the time of the framing of the U.S. Constitution, so too were those “born in the allegiance of the United States [ ] natural-born citizens.”232

The constitutional history, the nearly unanimous consensus of legal and constitutional scholars, and the consistent, relevant case law thus indicate that every child born in and subject to the jurisdiction of the United States (that is, not children of diplomatic personnel representing a foreign nation or military troops in hostile occupation), is a native born U.S. citizen and thus a “natural born Citizen” eligible to be President under the qualifications clause of the Constitution, regardless of the nationality or citizenship of one’s parents. The legal issues regarding “natural born” citizenship and birth within the United States, without regard to lineage or ancestral bloodline, have been well settled in this country for more than a century, and such concepts date back to, and even pre-date, the founding of the nation.

The weight of more recent federal cases, as well as the majority of scholarship on the subject, also indicates that the term “natural born citizen” would most likely include, as well as native born citizens, those born abroad to U.S. citizen-parents, at least one of whom had previously resided in the United States, or those born abroad to one U.S. citizen parent who, prior to the birth, had met the requirements of federal law for physical presence in the country.233

Author Contact Information Jack Maskell Legislative Attorney

231 Hollander v. McCain, 566 F.Supp.2d 63, 66 (D.N.H. 2008). 232 Ankeny v. Governor of the State of Indiana, 916 NE2d 678, 688 (2009), petition to transfer jurisdiction denied (Ind. Supreme Court, Apr. 5, 2010). 233 See now 8 U.S.C. § 1401(a) - (h). Under current law, at 8 U.S.C. § 1401(g), a person born abroad to one U.S. citizen-parent would be a citizen at birth if that parent had resided in the United States for at least five years, two of which were after the time the parent was 14 years of age.


2012-05-04 - mdec memo in support of motion for jop with exhibits

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