If the 2012 campaign to send Barack Obama back to Chicago began the morning after the 2010 midterms, Tea Party superstar and Senator-elect Marco Rubio (D-FL) may be spending a lot of time next year shaking hands and kissing babies in Iowa and New Hampshire.
A more likely Vice Presidential pick, Rubio is the type of candidate who gives Republicans tremendous hope for their future. He's from the critical swing state of Florida, he's young, articulate, smart, handsome, conservative to the core, and he's a Cuban American.
When asked if Rubio should seek higher office former Alaska Governor Sarah Palin said, "Not only Vice Presidential candidate, but, potentially a Presidential candidate some day."
Former New York City Mayor Rudy Giuliana gushed, "Although this will undoubtedly sound premature to some, I believe that if Marco Rubio goes on to win the U.S. Senate seat in Florida in November, he should immediately think about running for president -- possibly in 2012."
But is the Florida-born Mr. Rubio constitutionally eligible to be elected and sworn in as either President or Vice President of the United States?
Not if you believe in one of the "prominent legal arguments" that's been put forth by the anti-Obama birther movement.
Since the case surrounding the validity of Barack Obama's birth certificate was destroyed by the fact that his birth was announced four days after his birthday, in both of the Honolulu daily newspapers, the focus of the bogus dispute shifted to the murky legal area of dual citizenship and exactly what the meaning of "natural born citizen" means.The following legal argument has been circulated by a number of "birthers" including Stephen Tonchen, who as near as I can tell is only known in politics for writing this legal primer. However, the document is bolstered by a more well-known birther/attorney by the name of Leo Donofrio.
In Minor v. Happersett (1874), the Supreme Court said that, if you were born in the United States and both of your parents were U.S. citizens at the time of your birth, you are, without doubt, a natural born citizen. In the same case, the Supreme Court also said that, if you were born in the United States and one of your parents was not a U.S. citizen when you were born, your natural born citizenship is in doubt.
With only two exceptions, every American President, who was born after 1787, was born in the United States, to parents who were both U.S. citizens. The two exceptions were Chester Arthur and Barack Obama. When Chester Arthur ran for office, the public did not know about his eligibility problem. Only recently did historians learn that, when Arthur was born, his father was not a U.S. citizen.
The 2008 election was the first time in history that the United States knowingly elected a President who was born after 1787 and whose parents were not both U.S. citizens.
Barack Obama publicly admits that his father was not a U.S. citizen. According to Minor v. Happersett, there is unresolved doubt as to whether the child of a non-citizen parent is a natural born citizen. This doubt is not based on the imaginings of some tin-foil-hat-wearing conspiracy theorists on the lunatic of society.
This doubt comes from what the Supreme Court has actually said, as well as a variety of other historical and legal sources which are presented and discussed here.
So how does this apply to Marco Rubio?
From the U.S. Department of State website:The Government of Cuba does not recognize the U.S. nationality of U.S. citizens who are Cuban-born or are the children of Cuban parents. These individuals will be treated solely as Cuban citizens and may be subject to a range of restrictions and obligations, including military service.
Marco Rubio's parents, the late Mario Rubio and Oria Garcia Rubio, were both born in Cuba. According to Cuban law that makes Marco Rubio a dual citizen. And according to Stephen Tonchen that raises serious doubts as to his eligibility to seek either the Presidency or the Vice Presidency.
So will the "birthers" go after Mr. Rubio with even a fraction of the zeal that they have shown in their attacks on President Obama? Or at all?
On the one hand, Marco Rubio is a conservative Republican, so I'd guess that the answer is no.
But on the other hand he's a brown-skinned man, which is one of the major causes of the anti-Obama birthers ire, so anything's possible.
Do I believe that Marco Rubio is a citizen of the United States? Of course I do.
Only time will tell if the birthers do.
* * * *
Email messages sent to both Stephen Tonchen and Leo Donofrio have not been answered but if and when they are I will update this post with their comments.
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Comments
We've got Roger's back, he is smarter, WAY smarter than you. (I know for certain because I visited your blog in an effort to be fair.)
You are an idiot. A self-proclaimed failed sinner. Most of us here wallow in our sins......embrace them.........enjoy that we are so very very happy with our "sinfull-ness."
So stop embarrassing yourself and shut the frigg up. We love Roger, where have you been????
The Harvard Law Review blog states that "Membership in the Harvard Law Review is limited to second and third year law students on the basis of their performance on an annual writing competition." POLITICO says "Obama's [law school] article, which begins on page 823 of Volume 103 of the Harvard Law Review, is available in libraries and subscription-only data bases."
Are you having any luck with the canard that Obama never passed the bar? It's probably too late for you to promulgate Rep. Michelle Bachman's preposterous claim that Obama's trip (read vacation) to the Far East will cost the taxpayer $2B, with its 3000-member entourage, 870 rooms, 34 warships (Beck) and 40 airplanes (Limbaugh).
“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 [88 U.S. 162, 168] parents. As to this class there have been doubts, but never as to the first.”
In the version of the decision quoted by Mr. Tonchen and Mr. Donofrio includes the following highlighted statement: “if you were born in the United States and one of your parents was not a U.S. citizen when you were born, your natural born citizenship is in doubt.”
Tonchen and Donafrio, however, leave out the critical statement that, as Waite wrote, “Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [88 U.S. 162, 168] parents”
In Waite’s original statement, he makes it clear that the question of whether the citizenship status of the parents of American born children has any effect on the citizenship is in doubt, which means that it has not been decided.
The question of the citizenship status of native-born children of non-citizens was NOT, however, the subject raised by Minor v. Happersett, which was brought when the state registrar of voters refused to enroll Virginia Happersett as a voter because she was a woman, and the Missouri State Constitution restricted suffrage to men only.
Both court ruled against Mrs. Minor, finding that the states have the right to define the qualifications required for voting rights to exclude women even though the women in question were undisputedly citizens.
Neither Court had taken the question of the citizenship credentials of children born to non-citizen parents and, since the neither Court took votes on that question, the parenthetical statement raising doubts about the citizenship status of those children have no force or meaning in the law.
None of this has any meaning, however, because the United States Code, ratified in 1878, superseded any Court decisions made prior to that year. In addition, any revisions made to the Code subsequent to 1878 and voted into law by Congress in subsequent Congresses further supersedes a Court decision dating back to 1875.
TITLE 8 > CHAPTER 12 > SUBCHAPTER III > Part I > § 1401 of the United States Code stipulates that “The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof; “
This is a clear and unambiguous statement that supersedes any previous decisions of any Court on this matter, which begs the question that no court has yet been asked to take up the question of the Constitutionality of this provision.
Of course, I am well aware that partisans never pay attention to facts.
Insofar as the question of where Mr. Obama was born, Title 8>Chapter12>Subchapter III also states, under item E, that a child is considered a native born American if that child is “a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person.”
Under this statute, Mr. Obama could have been born on the Moon, and he would still be a citizen because his mother, an American citizen, had previously resided in the United States.
I, myself, remain concerned that, technically, at least, the fact that Barak Obama may have been enrolled as a citizen of Indonesia might invalidate his American citizenship. That quibble is answered, however, by the fact that, at the time that Mr. Obama became a citizen of Indonesia, if, indeed, he ever did, he was a minor child and, as a minor child, he was not eligible to renounce his American citizenship.
(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:
Under this provision, since Mr Obama's mother meets these criteria, her son is undoubtedly a native-born citizen under the law.
I am sorry that the comment section to this piece experienced so much ugliness.
Following that lecture...
Pee Wee Herman will explain Quantum Mechanics.
(g) a person born outside the geographical limits of the United States and its ..."
Hmm. That would be especially helpful if Obama had been born after 1986 and we could apply the current law.
For people born between 12.24.1942 and 11/14/1986 the law was different:
"If only one parent was a U.S. citizen at the time of your birth, that parent must have resided in the United States for at least ten years, at least five of which had to be after the age of 16."
Ms. Dunham was too young to meet the '5 years after 16' test.
Some sources:
1: http://www.brianwilliamslaw.com/lawyer-attorney-5365F1DF-5EEB-4DC0-BD003808196CBB9E.html
2: http://shusterman.com/uscitizenshipchart1.html
I don't happen to think Obama is a non-citizen, but send better rebuttals.
many of the comments refer to him as a US citizen. He clearly is, but not a 'natural born' citizen as the constitution requires.
Is the constitution important or not?
Bobby Jindal is even further away from being eligible.