Barack Obama - Behind The 'Birther' Controversy

“It is completely unimportant. That is why it is so interesting!”
Agatha Christie (1890 – 1976), English Mystery Writer

Questions of eligibility to hold the office of President of the United States have been raised several times over the history of the republic starting with Chester A. Arthur and continuing through Barry Goldwater, George Romney, and John McCain, but most recently centering on accusations that Barack Obama is either not a “natural born citizen” as required originally by Article 2 of the U.S. Constitution, or is not a citizen of the United States at all. Arguments for this break into two categories:

1. Barack Obama is not a “natural born citizen” as defined in Article 2, Clause 5 Qualifications for Office of the US Constitution.

2. Barack Obama is not an actual “citizen by birth” as defined by the Immigration and Nationalization Act of 1952.

The first argument rests on the direct language of Article 2, Section 1, Clause 5 which states:

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.

The term “natural born citizen” is not defined, therefore descends from English Common Law that assigns citizenship by place of birth within the jurisdiction of a nation. The purpose of this term was to restrict foreign born persons from becoming commander-in-chief of an American army on American soil. Because it is vague, subsequent law has attempted to better define it. The United States Naturalization Law of 1790 expanded “natural born citizen” to include persons born outside US jurisdiction to two U.S. citizen parents by stating that "children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens".

However, the United States Naturalization Act of 1798 , which replaced the earlier version, removed the term “natural born citizen” by stating only that such persons “shall be considered as citizens of the United States.”

Subsequent revisions of the Naturalization Act have not used the term “natural born citizen” so the strict application of Article 2, Clause 5 remains undefined. It could mean that a person must be born literally on U.S. soil, or it could be considered as equivalent to the term “citizen at birth” used in subsequent versions of the Immigration and Nationality Act now included in the United States Code. If the latter interpretation is accepted, the argument that Barack Obama is not a “natural born citizen” merges with the second argument that he is not a “citizen at birth.” However, if the English common law approach is taken, “natural born citizen” would be restricted to persons themselves born withing the U.S. or in territories under its jurisdiction, based on the 14th Amendment which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside.”

The current U.S. State Department Foreign Affairs Manual includes this language: "the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes." In other words, a person may acquire statutory citizenship at birth due to the doctrine of jus soli, referring to place of birth within U.S. states or eligible territories, or from jus sanguinis, referring to citizenship status of parents, but statutory citizenship is not necessary the same as the Constitutional definition of “natural born citizen.” Therefore, the meaning of this term will ultimately have to be decided either by the Supreme Court or by constitutional amendment to clarify requirements to hold the office of President (and Vice President, according to the 12th Amendment that makes them the same).

The second argument holds that Barack Obama is not a citizen at birth because he was not born in the state of Hawaii as claimed, but was actually born in Mombassa, Kenya on August 4, 1961. Some sources make reference to an affidavit taken by a Kenyan ordained minister and translator purporting to be the eyewitness testimony of Obama’s paternal grandfather’s second wife Sarah Obama, stating that Barack was born in Mombassa, and that it is common knowledge in the area that this is true. The supposed affidavit was filed by Reverend Kweli Shuhubia in the US District Court for Eastern Pennsylvania just prior to the November 2008 election. The affidavit – if true – would be convincing in confirming the Kenyan birth argument.

If Obama were shown to be born outside the jurisdiction of the United States as affirmed, his citizenship at birth would not be governed by the latest version of the Immigration and Nationalization Act included in the U.S. Code Title 8, Chapter 12, Subchapter III, Part 1, Section 1401, made law on January 8, 2008. At the time of his birth on August 4, 1961, the applicable language of The Immigration and Nationality Act of June 27, 1952, 66 Stat. 163, 235, 8 U.S. Code Section 1401 (b). (Section 301 of the Act) required:

(7) A person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States, who prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years.

However, the 1986 revision of the INA modified the requirement for paragraph (7) renamed (g) as follows:

(g) A person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 1 of the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288) by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 1 of the International Organizations Immunities Act, may be included in order to satisfy the physical-presence requirement of this paragraph. This provision shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date.

This language change modified the number of years required of the citizen parent to have resided within the United States from 5 years to 2 years after attaining the age of 14. Furthermore it made the change cited after the word “Provided” retroactive as though the revised version were in place in 1952, but this language covered only the provision for qualifying time to meet the separate 5 year and 2 year requirements, not the requirement itself. Therefore the modification of 10 years overall and 5 years after age 14 were not made retroactive, leaving the 1952 version to govern the interval from 1952 to 1986.

The most current revision of the INA passed in January 2008 does not modify the language of paragraph (g).

This interpretation is confirmed by review of the current IRA regulation found at the U.S. State Department website:

Birth Abroad to One Citizen and One Alien Parent in Wedlock: A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) INA provided the citizen parent was physically present in the U.S. for the time period required by the law applicable at the time of the child's birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen are required for physical presence in the U.S. to transmit U.S. citizenship to the child.

Birth Abroad Out-of-Wedlock to a U.S. Citizen Mother: A child born abroad out-of-wedlock to a U.S. citizen mother may acquire U.S. citizenship under Section 301(g) INA, as made applicable by Section 309(c) INA if the mother was a U.S. citizen at the time of the child's birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.

Section 309(c) of the Act cited above states that:

[A] person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person's birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.

There is no claim made that Barack Obama’s parents were unmarried. such that he was born out of wedlock. All claims are that his parents were married.

Barack Obama’s mother was Ann Dunham (November 29, 1942 – November 7, 1995), born in Wichita, Kansas, and his father was Barack Obama, Sr., a Luou from Kenya. They were married on February 2, 1961, and Barack was born on August 4, 1961 according to his own account. Therefore, Ann Dunham was 18 years and 8 months old at the time of Barack’s birth, and did not meet the statutory requirement for having lived 10 total years in the U.S. of which 5 years followed attainment of age 14 years, the requirement that was in effect in 1961. No subsequent revision to the INA has removed this requirement by making a retroactive change to the age requirement of 301(g) even though changes to the provision concerning qualified accumulation of years in the U.S. was made retroactive.

Therefore, if Barack Obama were born not in Hawaii but in a foreign country as alleged, he would not have acquired “citizen at birth” status and would have needed to be naturalized to become a citizen. There are no claims made that this ever occurred, hence he would currently not even be a U.S. citizen [Except: see link to Michelle Obama remarks in 2008].

Consequently, the entire controversy turns on the location of Barack Obama’s birthplace. If he were born in Hawaii – as commonly believed – he would have acquired automatic citizenship based on the 14th Amendment. If not, he would not even be a U.S. citizen. This would be an amazing finding. However, Chester A. Arthur, 21st President of the United States, was quite possibly born in Lower Canada (now Quebec) with British citizenship before his family moved across the border to north Vermont, and his presidency turned out very successfully. So the real question is: does it matter?

Following are some interesting links to information sources used in this article.

US Constitution, Article 2, Section 1, Clause 5: Qualifications For Office http://en.wikipedia.org/wiki/Article_Two_of_the_United_States_Constitution

Hawaii Health Dept.: http://hawaii.gov/health/vital-records/vital-records/latereg.html

Remarks of Michelle Obama in 2008 about Ann Dunham's marital status:
http://www.theobamafile.com/_exhibits/VeryYoungAndVerySingle.mht

Version of Sarah Obama’s statements from a Palin supporter website: http://boycottoprahsponsors.wordpress.com/2008/11/02/obamas-grandmother-insists-obama-born-in-kenya-affidavit-of-rev-kweli-shuhubia/

INA 1986 Version: http://www.theodora.com/ina_96_title_3.html

History of Revisions in Immigration Law, Includes INA 1952 312 (7)
http://www.aca.ch/hisuscit.htm

Current Link From The US State Department Website: http://travel.state.gov/law/info/info_609.html researched July 28, 2009