Obama eligible for presidency on two counts

Sunday, July 19th, 2009
By: Jonathan MontagJ.D.

You have probably heard about it. President Obama is not entitled to be President because he was not born in the United States. Not because Hawaii was not a state yet, as Hawaii was admitted to the Union on August 21, 1959, and Barack Obama was born on August 4, 1961 (I know, younger than me, too), but because he was actually born abroad. Not that there is any proof he was born abroad, but because of some concerns about the availability of his Hawaiian birth certificate, or something, people voice their doubts. Voodoo genealogy.

The Constitution requires that the President be a natural born citizen. “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….” Article 2, § 1, Clause 5. What “natural born” means is not entirely clear. As we all know, a person born in the United States is usually a United States citizen.  INA § 301(a). I say “usually” because the offspring of foreign diplomats on the official diplomatic list – meaning they do not need to pay parking tickets – do not become citizens at birth. Since President Martin Van Buren, the eighth president, all presidents were born in the United States and were United States citizens at birth. The first seven were born before U.S. independence.

Being born in the United States is not the only way to be born a United States citizen. A child can acquire citizenship from a citizen parent or parents. If both of a child’s parents are United States citizens when a child is born, a child born in 1961 (like the President), is a citizen if one of the parents resided in the United States before the child was born. INA § 301(c). President Obama was not born of two United States citizen parents. His mother, Stanley Ann Dunham Soetoro (and you thought Barack was a weird name) was born in Kansas and thus was a U.S. citizen. However, his father, Barack Obama, Sr., was a Kenyan citizen.  He married Stanley on February 2, 1961. The rules are different in this case. For a child born legitimately of one citizen parent and one foreign parent in 1961, the child is a citizen if the citizen parent was physically present in the U.S. or a possession ten years prior to the child’s birth, five of which are after age 14. See, the former INA § 301(a)(7). [It became easier on or after November 14, 1986, requiring five years of physical presence, two after the age of 14.] Stanley lived in the United States for ten years before she gave birth to the President. However, having been born on November 29, 1942, she was only 18 years, 8 months, and 6 days old when the President was born. She thus could not have been physically present in the United States for five years after the age of 14 before the President was born. She would have to have been at least 19 years old to transmit citizenship (14 + 5).

This is not the end of the story, however. As it turns out, Barack Obama, Sr., was married to a Kenyan woman when he married Stanley. While Stanley may have been a putative spouse, she was not technically married to the President’s father  – Hawaii dos not permit polygamy – and thus the President was born out of wedlock. The rule for transmission of citizenship in the case of a child born out of wedlock to a U.S. citizen mother born in 1961 is that the mother have been physically present in the U.S. or possession continuously for 12 months prior to the child’s birth. INA § 309(c). Even if Stanley somehow snuck outside the United States to give birth to the President, she most certainly spent a year in the United States before he was born. Thus, for this reason, U.S. born or not, President Obama is naturally born and eligible to be President.

There are those who assert that naturally born means born in the United States. If that were true, previous presidential contenders would have been ineligible to run. Three come to mind. First, the Mexican-born George Romney, who ran for President in 1968, and the father of Mitt. Second, Barry Goldwater, who was born in the Territory of Arizona (Arizona became a state of the United States on February 14, 1912. Goldwater was born January 1, 1909, in Phoenix. And the third, John McCain, who was born in the Panama Canal Zone. While the Canal Zone was a place where the U.S. was sovereign, it was not a part of the United States of America. And if  John McCain was not eligible, who would become President? You betcha! (Born in Idaho in 1964).


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