The Obama Conundrum
Someone wrote: “”that his father was NEVER a U.S. citizen is sufficient to disqualify himself right there”.
Ahhh, if only life were so simply. But he is legally undisqualifiable as President because the SCOTUS has never made a binding determination as to who is not a natural born citizen. Can a child born to an American mother who has no husband, boyfriend, or lover be rejected as being a natural born American citizen? Even if the missing father was an American? The historic description of a natural born citizen presupposes two parents, both US citizens, and birth in the US. That describes 99.99% of all persons born in American from the founding of the country, but many situations can exist in which no father is in the picture. Obama’s father has never been shown to have been in the picture regarding his son, and he never even mentioned him until his final appeal to try to get an extension of his visa. No court wants to have to parse those facts, nor split the hairs that would have to be split to come to a determination as to whether he is categorically disqualified from fitting the description of a natural born citizen. He plainly doesn’t, but any court would have to be willing to throw out every alternate possibility except the common description of a natural born citizen, which is one born in the country of which one’s parents are citizens.
Since any child born abroad to a Kenyan native is not recognized by the Kenyan legal system (which has no knowledge of the child’s existence) it was required that the Kenyan parent register the child with the proper authority within 2 years (I think that’s the length of time allowed). I would assume that Obama Sr., who avoided acknowledgment of his foreign born son, never registered him, and thus he would not have Kenyan citizenship, nor be a subject of the British Commonwealth. The idea of automatic Kenyan citizenship being passed from father to son only applies WITHIN Kenya, not outside, unless born in a Kenyan embassy after it became a nation.
That’s what I read in aN extensive explanation of the pertinent facts, and it makes perfect sense.
If he was born say, in Canada, then he might be a stateless person since his mother was too young to pass citizenship to him by the law in effect in 1961, though that may not apply in a case of paternal abandonement. AN
“A child born with dual citizenship in the United States, like Obama, isn’t SUBJECT TO ANY FOREIGN POWER unless that child is a child of a foreign dimlomat/visitor/tourist/illegal. The child MUST be born to a legal permanent resident parent in order to be a US citizen by the 14th Amendment, and it is not an automatic given that foreign citizenship would be conferred to such a child without fulfilling requirements of naturalization law of that foreign nation. So it can’t be easily proven that Obama even had dual-citizenship except in a probationary sense to give the father time to get him registered with the Kenyan authority.
His father was not a legal permanent resident so Obama’s birth didn’t qualify under the 14th Amendment as a legally recognized situation that would bestow citizenship.
His father was an absent father, and his mother is said to have moved to Seattle two weeks after giving birth, so the citizenship of his father can’t be demonstrated to even be relevant.
His father probably never registered him with the Kenyan Immigration authority, so there is little likelihood of him having dual citizenship.
He still is not a natural born citizen in the strictest sense because the common description involves birth to citizen parents (plural) but the intent of the Art II prohibition against anyone except a natural born citizen was aimed at those people born to and raised by foreign fathers, especially those raised in their foreign father’s country. That situation is almost the opposite of Obama’s situation, so the intent of the Art. II prohibition was not violated in his case. But if he has committed forgery in order to hide not being born on US soil, then he is not even a US citizen and thus is ineligible to be President. AN
Do not think that the common description of natural born citizen is an actual legal definition, so just how “strict” the definition is would depend on how the SCOTUS rules. And they could take the approach that if no alienage from a child’s missing alien father attaches to the child then the child should be considered a full-blooded American citizen with all the rights and privileges of a natural born citizen. That would be outside the limitations intended by the founders but SCOTUS has the power to change things by a single vote that provides a majority. And they could look at the wording of the Constitution and realize that it didn’t take into account esoteric exceptions to the normal birth to two married parents who were citizens. They might choose to expand the common nbc description to include citizens who didn’t have an alien father present in their life at birth and thereafter for some time. Under such an expanded definition they could include the rare exception to the norm that is seen in the case of Obama, since there is no evidence, other than divorce, that his parents were ever a couple. Many marriages have been created for reasons of gaining legal residency, and no paternal influence or responsibility was ever present.
“The question…is not the current issue before us,” but it would be the question before the court, and in the end, it doesn’t matter how right we might be, they will decide as they choose. But it will never be brought before them because there is no entity that has standing to bring such a case except Congress, and those ostriches aren’t even aware of the issue or they are horribly duplicitous. AN
The issue of whether or not alienage and dual-citizenship attached to the son of an alien is determined by two factors; 1. Did the father “abandon” the mother and child by not being present in their lives and sharing responsibility for the child, (absence being akin to death) AND fail to register the child with his government for purposes of acquiring the father’s citizenship? If Obama Sr. failed on both accounts, then his son would not have dual-citizenship since he was not born as a native Kenyan. Thus alienage would not attach to the son. On that basis the Supreme Court could decide that since the purpose of the natural born citizenship requirement would be met, i.e. no dual-citizenship, therefore such a person born to an American mother should be deemed a natural born US citizen, (but if born outside the US he would not be a citizen at all under the law at that time).
“As long as Obama Sr. was the legal parent, Obama was a British subject.” I read some communications between State Dept personnel about Obama’s paternity and they concluded that Obama Sr. was the recognized father but he had no established legal parental rights because they were not a domestic couple and never lived together, especially if she moved to Seattle two weeks after giving birth. So in what legal forum did he have any rights? Does Visa law grant any parental rights to children born of visiting alien fathers? I doubt it. I believe he didn’t even register his son with the proper Kenyan authorities in order to assure Kenyan citizenship. So from a Constitutional stand-point, it is almost like his father didn’t exist.
“…the greater body of British nationality law, which gave the alien father exclusive jurisdiction over the nationality of his child.” That would be a father that isn’t MIA, an MIA father has no say in anything.
“As long as Obama, Sr. was the legal parent, Obama was a British subject.”
Only if he WAS the “legal” parent and not just a sperm donor, and only IF he registered his son with the Kenyan authorities, which was required for births outside of Kenya. I know of no evidence that he did so. Do you? Without it, there’s no basis to claim he had dual-citizenship (I say that even though I’ve extensively expounded on dual citizenship making him ineligible to be President). But it’s dawned on me that the proof of the matter is lacking as far as I know, so I find no basis for the assertion that he had dual-citizenship, even if he made it himself. Having “potential” citizenship during the post-natal application period is quite different from having actual official citizenship.
About British legal tradition, I’m convinced that a “natural born subject” was one born in the King’s domain to subject parents, not to alien parents who were merely transients. THAT is how “natural born subject” should be viewed as analogous to natural born citizen, with citizenship based on jus sanguinis, not jus soli (which only applied to children of resident/domiciled aliens by statute, not by right. AN
Parsing the nuances of the 14th Amendment regarding subjection to US jurisdiction, the court would have to determine whether or not alien residents who live in the US by permission of any type of visa are fully subject to US jurisdiction. It seems illogical to believe that they would determine that someone here on a student visa would be subject to a U.S. military draft. Determining that they are not would categorize Obama Sr. as NOT being subject to US jurisdiction per the 14th Amendment and therefore the citizenship of his son would rest solely on whether or not he was born on US soil, since his mother was a year or less shy of having lived 5 years in the US after the age of 14 as required by the law in effect in 1961.