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 COMMITTEES
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 Page 1 of 24
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Docket No. 6, p.p. 18-26]. Taitzs 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. Taitzs 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. Taitzs 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 Taitzs 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 candidates qualifications, other
than the Secretary of States 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. Fedorkas signature page) and Docket No. 6-14 at 30
(Mr. Mac Lerans signature page). Moreover, none of the other purported Plaintiffs has provided contact information or
responded in any way to defendant MDECs counsels 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 Obamas 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 Presidents 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 Obamas 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 Taitzs 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 MDECs 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
candidates qualifications for the general election, this code section contains strict time limitations,
requiring the petition challenging the general election candidates 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 MDECs agent for service of process. Moreover,
Taitzs email did not name the four additional Plaintiffs. Taitzs email asks that her original petition
challenging President Obamas candidacy in the primary election be converted to a general election
challenge, given that the primary election had already transpired. Assuming that Taitzs email to the
undersigned counsel in some way constitutes a petition lodged with the Democratic Party, Taitzs
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 Obamas 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
candidates 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 Obamas 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 Obamas 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 Assn, 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 plaintiffs 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), affd, 586 F.3d 234, 239 (voters stake no greater than any other voter and thus
suffered no injury in fact.)
PLAINTIFFS FEDORKA, ROTH, LAX AND MACLERANS 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 Obamas 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 Obamas 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
Obamas candidacy. The California statute required a candidates 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 candidates 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 Obamas 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 instancenot 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 nominees 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
electors names on the ballot. However, votes cast for electors for the named candidates must be
counted as votes for the candidates 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 Obamas 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 Partys
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 Obamas 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 Obamas lack of natural born status and legitimacy for the US Presidency, is
Obamas 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 candidates 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 paupers tendered complaint), appeal
pending, No. 12-1124 (4th Cir. filed Jan. 30, 2012).
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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 Obamas 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 courts 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 Presidents 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 Obamas
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 Taitzs 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 ones 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 Taitzs 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), affd, 368 Fed. Appx 949, (11th Cir. 2010), rehg 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 Obamas 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 Taitzs 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 Obamas 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 Hawaii 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 Hawaii 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. Appx 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
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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 Hawaii Governor Neil Abercrombie, Hawaii Health Department Grants President
Obamas 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. Obamas
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://Hawaii.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 candidates 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 Taitzs 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 Obamas 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 Obamas 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 Taitzs 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 ones 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 Obamas
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 4
th
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: sbegley1@bellsouth.net

SCOTT J. TEPPER
GARFIELD & TEPPER
1801 Century Park East, Suite 2400
Los Angeles, CA 90067-2326
(310) 277-1981
(310) 277-1980
scottjtepper@msn.com

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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
scottjtepper@msn.com

Orly Taitz, Esq.
29839 Santa Margarita Parkway, Suite 100
Rancho Santa Margarita, CA 92688

And to the following persons by email:

Brian Fedorka
Bfedorka82@gmail.com

Laurie Roth
drljroth@aol.com

Leah Lax
Leahlax1234@aol.com

Tom MacLeran
tom@macleran.com

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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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 Obamas 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 Obamas
eligibility to appear on 2012 ballot; finding that Obama was born in U.S. and is a natural born citizen),
decision adopted by Ga. Secy 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) (Obamas 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.
Secy of State Apr. 12, 2012); Jackson v. Obama, 12 SOEB GP 104 (Ill. Bd. of Elections Hearing Officer
Recommendation Jan. 27, 2012) (Obamas 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 Commn 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 Obamas
eligibility to appear on 2012 ballot; finding that Obama was born in U.S. and is a natural born citizen),
decision adopted by Ga. Secy 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. Secy 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 Obamas eligibility to his office; expressly rejecting
the birther claim that Obama is ineligible on the basis of his fathers 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 Obamas eligibility to appear on 2012 ballot; finding that Obama was born in U.S. and is a
natural born citizen), decision adopted by Ga. Secy 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 plaintiffs 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 Obamas eligibility to appear on 2012 ballot; finding that Obama was born in U.S. and is a natural
born citizen), decision adopted by Ga. Secy 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 Obamas 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 Obamas 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 Obamas eligibility;
criticizing conduct of plaintiffs 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), affd sub nom. Drake v. Obama, 664 F.3d 774 (9th Cir. 2011), rehg and rehg
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 Obamas eligibility; characterizing various plaintiffs claims as
frivolous), affd, 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), affd, 383 F. Appx 7 (D.C. Cir. 2010); Beverly v.
Fed. Election Commn, 1:08-cv-01538-AWI-GSA, 2009 WL 196361 (E.D. Cal. Jan. 28, 2009)
(dismissing case that included claims regarding Obamas eligibility), affd, 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), affd, 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), affd, 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 Obamas eligibility), affd, 332 F. Appx 640 (D.C. Cir. 2009) (per curiam), rehg and rehg
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 Obamas 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 Obamas 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), affd, No. 09-6082, 340
F. Appx 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), rehg 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 Obamas eligibility); Essek v. Obama, 08-379-GFVT (E.D. Ky. Jan. 15, 2009) (dismissing
case challenging Obamas 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 Obamas and McCains 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 Obamas 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 plaintiffs 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), rehg denied, 130 S.Ct. 1169 (2010); Hollander v. McCain,
566 F. Supp. 2d 63 (D.N.H. 2008) (dismissing case challenging McCains eligibility); Hollister v.
Soetoro, 601 F. Supp. 2d 179 (D.D.C. 2009) (dismissing interpleader case challenging Obamas
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), affd, Nos. 09-5080 & 09-5161, 368 F. Appx
154 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1017 (2011), rehg 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 Administrations 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. Appx 113 (3rd Cir. Dec. 22, 2008) (denying petition for writ of
mandamus regarding challenge to Obamas eligibility); Jones v. Obama, No. 2:10-cv-01075 (C.D. Cal.
July 20, 2010) (dismissing case challenging Obamas eligibility); Judy v. McCain, No. 2:08cv01162 (D.
Nev. Sept. 8, 2008) (dismissing case challenging McCains eligibility); Kerchner v. Obama, 669 F. Supp.
2d 477 (D.N.J. 2009) affd, 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 Obamas
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, Obamas eligibility); Morrow v. Obama, No.
1:08-cv-22345 (S.D. Fla. Mar. 9, 2009) (dismissing complaint challenging Obamas eligibility); Neely v.
Obama, 2:08-cv-15243 (E.D. Mich. Feb. 4, 2009) (dismissing case challenging, among other things,
Obamas eligibility); Patriots 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 Obamas 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), affd, 446
F. Appx 496 (3d Cir. 2011) cert. denied, 132 S. Ct. 1037 (U.S. 2012) rehg 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 Obamas 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 Obamas 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), affd, 368 F. Appx 949, (11th Cir. 2010), rehg
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 McCains eligibility); Roy v. Fed. Election Commn, 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 McCains and Obamas 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, Obamas 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 Obamas mother
allegedly related to Obamas 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 Obamas mother
allegedly related to Obamas 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 Obamas eligibility); Taitz v.
Obama, 707 F. Supp. 2d 1 (D.D.C. 2010) (dismissing complaint challenging Obamas 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 Obamas 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 Obamas 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 Obamas 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 Obamas 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 Obamas eligibility); Tisdale v. Obama, No. 3:12-cv-00036-JAG (E.D. Va. Jan. 23, 2012)
(dismissing complaint challenging Obamas 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
Obamas 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 Obamas 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 Obamas eligibility to be on 2012 ballot); Allen v. Obama et al, No. C20121317 (Ariz. Pima
County Super. Ct. Mar. 7, 2012) (dismissing case challenging Obamas 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 McCains and Obamas eligibility),
affd, 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 Obamas
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 Obamas eligibility); Broe v. Reed, No.
82473-8 (Wash. Jan. 8, 2009) (dismissing writ of mandamus challenging Obamas eligibility); Connerat
v. Browning, 999 So. 2d 644 (Table) 2008 WL 5378138 (Fla. 2008) (dismissing petition for extraordinary
emergency writ of mandamus challenging Obamas 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
Obamas 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 Obamas 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), affd, 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 Obamas 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
born citizen), decision adopted as final (Ga. Secy 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) (Obamas 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. Secy 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 Obamas 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 plaintiffs ballot challenge); Greenberg
v. Brunner, No. 2008CV1024 (Ohio Wood County Ct. Com. Pl. Jan. 14, 2009) (dismissing case
challenging Obamas 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 Obamas eligibility to appear on 2012 ballot); In re John McCains 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 McCains eligibility), affd, 944 A.2d 75 (Pa. 2008); Jackson v. Obama, 12 SOEB GP 104
(Ill. Bd. of Elections Hearing Officer Recommendation Jan. 27, 2012) (Obamas 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 Obamas eligibility), affd 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 Obamas eligibility to be on 2012 ballot); Kesler v. Obama,
No. 2012-162 (Ind. Election Commn 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, Obamas eligibility to be on the California
ballot; assessing costs against plaintiff), affd, 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
Obamas eligibility); Martin v. Lingle, No. 29414, 2008 WL 4684786 (Haw. Oct. 22, 2008) (rejecting
petition seeking disclosure of Obamas 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 Obamas 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 Obamas 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 Obamas eligibility); Meroni et al v. Obama, 12 SOEB
GP 104 (Ill. Bd. of Elections Hearing Officer Recommendation Jan. 27, 2012) (Obamas 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 Obamas eligibility) (as reported by Ohio Secretary of
State); Patriots Heart Media Network v. Ill. Bd. of Elections, No. 10CH000605 (Ill. McHenry County
Chancery. Ct. Mar. 8, 2010) (dismissing case challenging Obamas 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 Obamas 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. Secy 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.
Secy of State Apr. 12, 2012); Ripley v. Obama, No. 2012-163 (Ind. Election Commn 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 Obamas 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 Obamas 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 Obamas and McCains eligibility); Sorenson v.
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BIRTHER CASES
Kennedy, No. 01-CV-2011-0023.00 (Ala. Montgomery County Cir. Ct. Jan. 19, 2012) (dismissing
complaint challenging Obamas eligibility to be on 2012 ballot); Spuck v. Secretary of State, No.
2008CV1116 (Ohio Erie County Ct. Com. Pl. Dec 2008) (dismissing case challenging Obamas
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 Obamas 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
Obamas eligibility to his office; expressly rejecting the birther claim that Obama is ineligible on the basis
of his fathers 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 Obamas 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 Obamas 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 Obamas eligibility); Sullivan v. N.C. Secy of State, No. 08-cv-1076 (N.C.
Super. Ct. Oct. 29, 2008) (dismissing case challenging Obamas 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 Obamas eligibility); Swensson v. Obama, No.
OSAH-SECSTATE-CE-1216218-60-MALIHI (Ga. Office of St. Admin. Hrg. Feb. 3, 2012) (rejecting
challenge to Obamas 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. Secy 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 Commn 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 Obamas eligibility), recons. denied (Jan. 6, 2012), recons. denied (Feb. 7,
2012); Taitz v. Obama, No. BLC 2011-4 (N.H. Ballot Law Commn Nov. 18, 2011) (dismissing petition
challenging Obamas 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
Obamas 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 Commn in Taitz v. Obama, No. BLC 2011-4 (N.H. Ballot Law
Commn 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 Obamas 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 Obamas 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 Obamas 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 Obamas 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 Obamas eligibility to be on 2012 ballot and finding that petition
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BIRTHER CASES
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 Obamas 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 Obamas 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
born citizen), decision adopted as final (Ga. Secy 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 Commn 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 Obamas eligibility); Wrotnowski v. Bysiewicz, 958 A. 2d 709 (Conn. 2008)
(dismissing case challenging Obamas eligibility), application for stay denied, 129 S. Ct. 775 (2008).
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Exhibit B
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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 Obamas 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 citizens 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 Obamas 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. Secy 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. Secy of State Apr. 12, 2012) ........................................................................................ D
Freeman v. Obama, 12 SOEB GP 103 (Ill. Bd. of Elections Hearing Officer
Recommendation Jan. 27, 2012) (Obamas 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) (Obamas 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 Obamas 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. Secy 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) ......................................................................................................................... C
1

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. Secy of State Apr. 12, 2012) ...................................................................................... D
2

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 Obamas eligibility to his office; expressly rejecting the birther claim
that Obama is ineligible on the basis of his fathers 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 Obamas
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. Secy 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) ................................................................................................................................. C
3

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 plaintiffs
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 Obamas
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. Secy 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) ................................................................................................. C
4

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 Plaintiffs 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 Obamas 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 Arizonas 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 pleadings 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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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 Plaintiffs 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 Presidents
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 Courts purview to decide, there are indispensible
parties, most notably Arizonas 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 Plaintiffs 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 Courts
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 Courts 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 Partys Motion to Dismiss for the reasons
stated herein and DENYING all relief requested.
IT IS FURTHER ORDERED DISMISSING with prejudice Plaintiffs 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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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 Partys Motion to Strike and Plaintiffs Motion to Stay Proceedings to Gather Important
Information for Courts 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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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 678
Court of Appeals of Indiana.
Steve ANKENY and Bill
Kruse, AppellantsPlaintiffs,
v.
GOVERNOR OF the STATE OF
INDIANA, AppelleeRespondent.
No. 49A020904CV353. | Nov.
12, 2009. | Rehearing Denied Jan. 15,
2010. | Transfer Denied April 1, 2010.
Synopsis
Background: Citizens filed petition for extraordinary writ of
prohibition against Governor, seeking to prevent Governor
from issuing Certificate of Ascertainment officially
appointing the electors who cast the State's votes in the
Electoral College, the body deciding the election for the
President of the United States. The Superior Court, Marion
County, David J. Dreyer, J., granted Governor's motion to
dismiss for failure to state a claim upon which relief could be
granted. Citizens appealed.
Holdings: The Court of Appeals, Brown, J., held that:
[1] sitting Senators' placement on ballot as candidates for
President of the United States did not violate constitutional
requirement 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 be
President of the United States, regardless of the citizenship of
their parents.
Affirmed.
West Headnotes (10)
[1] Attorney and Client
Rights of litigants to act in person or by
attorney
Pro se litigants are held to the same standard
as licensed lawyers; Court of Appeals will not
indulge in any benevolent presumptions on their
behalf, or waive any rule for the orderly and
proper conduct of their appeal.
1 Cases that cite this headnote
[2] Appeal and Error
Insufficient discussion of objections
Issues for which pro se appellants failed to
develop cogent argument or cite to authority were
waived on appeal.
Striking out or dismissal
When reviewing a motion to dismiss, appellate
court views the pleadings in the light most
favorable to the nonmoving party, with
every reasonable inference construed in the
nonmovant's favor. Trial Procedure Rule 12(B)
(6).
[4] Pretrial Procedure
Insufficiency in general
Pretrial Procedure
Construction of pleadings
A complaint may not be dismissed for failure to
state a claim upon which relief can be granted
unless it is clear on the face of the complaint
that the complaining party is not entitled to
relief; however, a court need not accept as true
any conclusory, non-factual assertions or legal
conclusions. Trial Procedure Rule 12(B)(6).
Extent of Review Dependent on Nature of
Decision Appealed from
While appellate court reviewing grant of a motion
to dismiss for failure to state a claim does not test
the sufficiency of the facts alleged with regard
to their adequacy to provide recovery, the court
does test their sufficiency with regard to whether
they have stated some factual scenario in which a
legally actionable injury has occurred.
[6] Judgment
Motion or Other Application
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Generally, when a motion to dismiss for failure
to state a claim is supplemented with materials
outside the pleadings, it should be treated as a
motion for summary judgment. Trial Procedure
Rule 12(B)(6).
[7] Judgment
Motion or Other Application
Pretrial Procedure
Matters considered in general
When 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 motion to dismiss for failure
to state a claim, rather than convert the motion
into one for summary judgment, because the
external material are irrelevant to the motion.
Trial Procedure Rule 12(B)(6).
[8] United States
Presidential electors
Sitting United States Senators' placement on
ballot as candidates for President of the United
States did not violate constitutional requirement
that no Senator be appointed an Elector in
Electoral College. U.S.C.A. Const. Art. 2, 1, cl.
2.
[9] United States
Presidential electors
Federal constitution vests in the various state
legislatures the authority to determine how their
state chooses their Electors for Electoral College,
the body deciding the election for the President of
the United States. U.S.C.A. Const. Art. 2, 1, cl.
2; U.S.C.A. Const.Amend. 12.
[10] United States
President
Persons born within the borders of the United
States are natural born Citizens, as required for
qualification 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, Frances
Barrow, 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 motion
to dismiss filed by Mitch Daniels, in his official capacity as
the Governor of the State of Indiana (Governor). Plaintiffs
raise nine issues, which we revise and restate as whether the
trial 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 prevent
the Governor from issuing a Certificate of Ascertainment,
or any other document, to Congress of the United States
containing any popular votes for Barack Obama and Joe
Biden for the appointment as Chief Electors ... [or] John
McCain and Sarah Palin for the appointment of Electors.
Appellants' Appendix at 6. On January 30, 2009, the
Governor filed a motion to dismiss alleging in part that the
Plaintiffs have failed to state a claim upon which relief can
be granted. Appellee's Appendix at 1. The Governor also
filed a memorandum in support of the motion to dismiss.
On February 17, 2009, the Plaintiffs filed their opposition to
the Governor's motion to dismiss. On March 16, 2009, the
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trial court granted the Governor's motion to dismiss after a
hearing. On April 13, 2009, the Plaintiffs filed their notice of
appeal.
[3] [4] [5] [6] [7] The sole issue is whether the trial
court erred when it dismissed Plaintiffs' complaint. A motion
to dismiss for failure to state a claim tests the legal sufficiency
of the claim, not the facts supporting it. General Cas. Ins.
Co. v. Bright, 885 N.E.2d 56, 57 (Ind.Ct.App.2008) (citing
Charter One Mortg. Corp. v. Condra, 865 N.E.2d 602, 604
(Ind.2007)). Thus, our review of a trial court's grant or denial
of a motion based on Trial Rule 12(B)(6) is de novo. Id. at 58.
When reviewing a motion to dismiss, we view the pleadings
in the light most favorable to the nonmoving party, with every
reasonable inference construed in the nonmovant's favor. Id.
A complaint may not be dismissed for failure to state a claim
upon which relief can be granted unless it is clear on the face
of the complaint that the complaining party is not entitled to
relief.
4
*681 Id. However, a court need not accept as true
any 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 facts
alleged with regards to their adequacy to provide recovery,
we do test their sufficiency with regards to whether or not
they have stated some factual scenario in which a legally
actionable injury has occurred. Trail v. Boys and Girls Clubs
of Northwest Indiana, 845 N.E.2d 130, 134 (Ind.2006).
In their complaint, the Plaintiffs appear to suggest
that the Governor has a duty to determine a person's
eligibility to become President in issuing the Certificate
of Ascertainment officially appoint[ing] the electors who
cast the State of Indiana's votes in the Electoral College,
the body which decides the election for the President of the
United States (President). Transcript at 13. Specifically,
Plaintiffs appear to argue that the Governor did not comply
with this duty because: (A) neither President Barack Obama
nor Senator John McCain were eligible to be appointed
Elector in Chief in violation of Article II, Section 1, Clause
2's prohibition that no United States Senator currently holding
that office shall be appointed Elector for any State, and (B)
neither President Barack Obama nor Senator John McCain
were eligible to hold the office of President because neither
were born naturally within any Article IV State of the 50
United States of America.... Appellants' Appendix at 1112,
1618.
Initially, we note that the Plaintiffs do not cite to any authority
recognizing that the Governor has a duty to determine the
eligibility of a party's nominee for the presidency. The
Plaintiffs do not cite to authority, nor do they develop a cogent
legal argument stating that a certificate of ascertainment has
any relation to the eligibility of the candidates. However, we
note that even if the Governor does have such a duty, for the
reasons below we cannot say that President Barack Obama or
Senator 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 the
United States enumerates qualification for the Office of
Presidential and VicePresidential Electors, and no sitting
Senator, such as Senator Barack Obama and Senator Joseph
Biden, or Senator John McCain, was qualified. Appellants'
Brief at 8. We hold for the reasons stated below that Plaintiffs
failed to state a cognizable legal claim upon which relief can
be granted.
In evaluating Plaintiffs' claim, one need not go further than
compare their framing of the electoral process in the State
of Indiana with Indiana's electoral process as constructed by
state and federal statute, and indeed by the U.S. Constitution
itself. Article II, Section 1 of the U.S. Constitution sets forth
how 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 Manner
as the Legislature thereof may direct, a
Number of Electors, equal to the whole
Number of Senators and Representatives
to which the State may be entitled in the
Congress: but no Senator or Representative,
or Person holding an Office of Trust or
Profit under the United States, shall be
appointed an Elector.
U.S. CONST. art. II, 1, cl. 2. Much of the rest of Article
II, Section 1 was changed by the Twelfth Amendment which
was ratified in June 1804. The Twelfth Amendment directs:
The Electors shall meet in their respective
states, and vote by ballot for President ...
and transmit sealed to the seat of the
government of the United States, directed to
the President of the Senate;The President
of the Senate shall, in the presence of the
Senate and House of Representatives, open
all the certificates and the votes shall then be
counted;The person having the greatest
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number of votes for President, shall be the
President ...
U.S. CONST. amend. XII.
[9] Thus, the U.S. Constitution vests in the various state
legislatures the authority to determine how their state chooses
their Electors. The Indiana Legislature acted on this authority
when it enacted Ind.Code 31044, which allows voter
ballots to carry the name of the nominees for President
and Vice President of the United States of a political party,
and that such votes for each nominee is a vote cast or
registered for all of the candidates for presidential electors
of the party.... By virtue of its nine members of the House
of 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 eleven
individuals who were residents of the State of Indiana to serve
as their party's electors in the 2008 presidential election.
6
See Ind.Code 3842 ([a] political party shall conduct
a state convention to ... nominate candidates for presidential
electors and alternate electors ....); see also Appellants'
Appendix at 2122. Neither President Barack Obama nor
Senator John McCain were nominated as electors for their
respective parties in the 2008 election. Appellants' Appendix
at 2122.
Not later than noon on the second Monday following an
election, each circuit court clerk shall prepare a certified
statement *683 ... of votes received by each candidate for:
(1) federal office.... Ind.Code 31256(a). These certified
statements are sent to the election division of the Secretary
of State. Ind.Code 31256(b). Once the election results
have been tabulated, not later than noon of the last Tuesday
in November, the Secretary of State shall certify to the
governor the candidate receiving the highest number of votes
for each office. Ind.Code 31257. The Governor must
then execute a certificate of ascertainment which officially
appoints the winning presidential electors; a copy of the
certificate 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 the
Indiana house of representatives on the first Monday after
the second Wednesday in December as provided by 3 U.S.C.
7, or on another day fixed by the Congress of the United
States, at 10 a.m. to elect the President and VicePresident
of the United States. Ind.Code 31047. The electors
then furnish copies of the certificates so made by them
and the lists attached thereto
8
to the Vice President, the
Indiana Secretary of State, the Archivist of the United States,
and judge of the district in which the electors shall have
assembled. 3 U.S.C. 11. The votes of the electors of each
state are then tallied by the Congress of the United States and
the new President is announced. 3 U.S.C. 15.
The Plaintiffs have a different view of the electoral process in
the State of Indiana. In their complaint, the Plaintiffs allege
that:
By allowing the name of Barack Obama
upon the ballot for appointment of Electors,
the Governor of the State of Indiana has
allowed Barack Obama to be appointed
Elector in Chief in violation of Article
II, Section 1, Clause 2's prohibition that no
United States Senator currently holding that
office shall be appointed Elector for any
State.
Appellants' Appendix at 16. The Plaintiffs make a similar
charge against Senator John McCain's name appearing on
the ballot. In essence, Plaintiffs argue that because President
Barack Obama and Senator John McCain were United States
Senators on November 4, 2008, they were constitutionally
ineligible to be appointed as presidential elector (or, as
Plaintiffs put it, Elector in Chief).
Plaintiffs do not state a meritorious claim. Notwithstanding
the fact that it is unclear what Plaintiffs are referring to
by the phrase Elector in Chief, Plaintiffs' characterization
of the electoral process in the State of Indiana simply is
not consistent with the applicable laws. The fact that the
names Barack Obama and John McCain are the ones that
appeared on the ballot does not change the fact that they were
in fact candidates for the presidency, not any of Indiana's
electors.
This distinction between a candidate and an elector is readily
ascertainable throughout Title 3 of the Indiana Code. As an
example, we examine Ind.Code 3816, titled President
or Vice President; electors. That code section states:
(a) A candidate for the office of President or Vice President
of the United States must have the qualifications
provided in Article 2, Section 1, clause 4 of the
Constitution of the United States.
*684 (b) A candidate for the office of elector for President
and Vice President of the United States must have the
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qualifications provided in Article 2, Section 1, clause 2
of the Constitution of the United States and Section 3
of the Fourteenth Amendment to the Constitution of the
United States.
Ind.Code 3816 (emphasis added). Thus, Ind.Code 3
816 expresses a dichotomy between the presidential and
vice-presidential nominees and the slate of electors appointed
by each political party to serve in the Electoral College. See
also Ind.Code 31041 (stating that the names of the
electors of President and Vice President of the United States
may not be placed on the ballot, but that [t]he names of
the nominees for President and Vice President of the United
States ... shall be placed ... on the ballot ...).
Thus, we conclude that Plaintiffs' argument that the Governor
has allowed President Barack Obama and Senator John
McCain to be appointed Elector in Chief in violation of
Article II, Section 1, Clause 2's prohibition against sitting
Senators being appointed Elector for any State fails to state a
claim upon which relief can be granted.
B. Natural Born Citizen
[10] Second, the Plaintiffs argue that both President Barack
Obama and Senator John McCain are not natural born
Citizens 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 constitutionally
eligible to become President, [t]he Governor ... should
[have been] prohibited by order of [the trial court] ... from
issuing any certificate of ascertainment, or any other certified
statement, under the State Seal of the State of Indiana....
Appellants' Appendix at 13.
Before addressing the Plaintiffs' specific arguments, we think
it helpful to point out the context in which this claim
arises. Leading up to the 2008 Presidential Election and in
the ensuing months after, a number of lawsuits were filed
nationwide 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 Hollander
v. McCain, 566 F.Supp.2d 63 (D.N.H.2008); Cohen v.
Obama, No. 082150, 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 members
of the so-called birther movement who suggest that the
President was not born in the United States; they support
their argument by pointing to the President's alleged refusal
to disclose publicly an official birth certificate that is
satisfactory to [the birthers]. Rhodes v. MacDonald, No.
409CV106CDL, 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 legal
argument 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 the
United States' and a natural born Citizen, and the difference
involves having [two] parents of U.S. citizenship, owing no
foreign allegiance. Appellants' Brief at 23. With regard to
President Barack Obama, the Plaintiffs posit that because
his father was a citizen of the United Kingdom, President
Obama is constitutionally ineligible to assume the Office of
the President.
The bases of the Plaintiffs' arguments come from such
sources as FactCheck.org, The Rocky Mountain News, an
eighteenth century treatise by Emmerich de Vattel titled The
Law of Nations, and various citations to nineteenth century
congressional debate.
11
For the reasons stated below, we
hold that the Plaintiffs' arguments fail to state a claim upon
which relief can be granted, and that therefore the trial court
did 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. It
provides that [a]ll persons born or naturalized in the United
States and subject to the jurisdiction thereof, are citizens of
the United States.... U.S. CONST. amend XIV, 1. Article
II has a special requirement to assume the Presidency: that
the person be a natural born Citizen. U.S. CONST. art. II,
1, cl. 4. The United States Supreme Court has read these
two provisions in tandem and held that [t]hus new citizens
may be born or they may be created by naturalization. Minor
v. Happersett, 88 U.S. (21 Wall.) 162, 167, 22 L.Ed. 627
(1874). In Minor, written only six years after the Fourteenth
Amendment was ratified, the Court observed that:
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
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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.
*686 Id. at 167168, 22 L.Ed. 627. Thus, the 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.
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 Court
confronted the question of whether a child born in the United
States, of parents of Chinese descent, who at the time of his
birth are subject to the emperor 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.... 169 U.S. at
653, 18 S.Ct. at 458. We find this case instructive. The Court
in Wong Kim Ark reaffirmed Minor in that the meaning of
the words citizen of the United States and natural-born
citizen of the United States 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. at
654, 18 S.Ct. at 459. They noted 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. 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 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,-as expressed in
the maxim, Protectio trahit subjectionem, et subjectio
protectionem,'-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.
This fundamental principle, with these qualifications or
explanations of it, was clearly, though quaintly, stated in
the leading case known as Calvin's Case, or the Case
of the Postnati, decided in 1608, after a hearing in the
exchequer chamber before the lord chancellor and all the
judges of England, and reported by Lord Coke and by
Lord Ellesmere. Calvin's Case, 7 Coke, 1, 4b6a, 18a, 18b;
Ellesmere, Postnati, 6264; s. c. 2 How. St. Tr. 559, 607,
613617, 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, and
in 1 Hale, P.C. 61, 62; 1 B1. Comm. 366, 369, 370, 374; 4
B1. Comm. 74, 92; Lord Kenyon, in Doe v. Jones, 4 Term
R. 300, 308; Cockb. Nat. 7; Dicey, Confl. Laws, pp. 173
177, 741.
*687 * * * * * *
Lord Chief Justice Cockburn ... said: By the common
law of England, every person born within the dominions
of the crown, no matter whether of English or of foreign
parents, and, in the latter case, whether the parents were
settled, or merely temporarily sojourning, in the country,
was an English subject, save only the children of foreign
ambassadors (who were excepted because their fathers
carried their own nationality with them), or a child born to
a foreigner during the hostile occupation of any part of the
territories of England. No effect appears to have been given
to descent as a source of nationality. Cockb. Nat. 7.
Mr. Dicey, in his careful and thoughtful Digest of the
Law 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 permanent
allegiance to the crown. Permanent allegiance is used
to distinguish the allegiance of a British subject from
the allegiance of an alien, who, because he is within the
British dominions, owes temporary allegiance to the
crown. Natural-born British subject means a British
subject who has become a British subject at the moment
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of his birth.' Subject to the exceptions hereinafter
mentioned, any person who (whatever the nationality
of his parents) is born within the British dominions is
a natural-born British subject. This rule contains the
leading principle of English law on the subject of British
nationality. The exceptions afterwards mentioned by
Mr. Dicey are only these two: (1) Any person who (his
father being an alien enemy) is born in a part of the
British dominions, which at the time of such person's
birth is in hostile occupation, is an alien. (2) Any
person whose father (being an alien) is at the time of such
person's birth an ambassador or other diplomatic agent
accredited to the crown by the sovereign of a foreign
state is (though born within the British dominions) an
alien. And he adds: The exceptional and unimportant
instances in which birth within the British dominions
does not of itself confer British nationality are due to the
fact that, though at common law nationality or allegiance
in substance depended on the place of a person's birth,
it in theory at least depended, not upon the locality
of a man's birth, but upon his being born within the
jurisdiction and allegiance of the king of England; and it
might occasionally happen that a person was born within
the dominions without being born within the allegiance,
or, in other words, under the protection and control of
the crown. Dicey, Confl. Laws, pp. 173177, 741.
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, and 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.
III. 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. *688
13
Id. at 655658, 18 S.Ct. at 459460.
Also, as quoted in Wong Kim Ark, Justice Joseph Story once
declared in Inglis v. Trustees of Sailors' Snug Harbor, 28 U.S.
(3 Pet.) 99, 7 L.Ed. 617 (1830), that 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. Wong
Kim Ark, 169 U.S. at 660, 18 S.Ct. at 461 (quoting Inglis, 28
U.S. (3 Pet.) at 164 (Story, J., concurring)). The Court also
cited Justice Curtis's dissent in Dred Scott v. Sandford, 60
U.S. (19 How.) 393, 15 L.Ed. 691 (1856):
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.
Wong Kim Ark, 169 U.S. at 662, 18 S.Ct. at 462 (quoting Dred
Scott, 60 U.S. (19 How.) at 576 (Curtis, J., dissenting)).
The Court in Wong Kim Ark also cited authority which notes
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 of 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 only to the same exceptions,
since as before the Revolution.
Id. at 662663, 18 S.Ct. at 462 (quotations and citations
omitted). 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 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
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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.
15
*689 The Plaintiffs do not mention the above United
States Supreme Court authority in their complaint or brief;
they primarily rely instead on an eighteenth century treatise
and quotations of Members of Congress made during the
nineteenth century. To the extent that these authorities
conflict with the United States Supreme Court's interpretation
of what it means to be a natural born citizen, we believe
that the Plaintiffs' arguments fall under the category of
conclusory, non-factual assertions or legal conclusions that
we need not accept as true when reviewing the grant of a
motion to dismiss for failure to state a claim. Irish, 864 N.E.2d
at 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) (holding
that the plaintiffs' arguments had been sufficiently addressed
by Indiana Supreme Court precedent and therefore the trial
court did not err when it granted the defendant's motion to
dismiss for failure to state a claim upon which relief can
be granted); see also, e.g., DiazSalazar v. I.N.S., 700 F.2d
1156, 1160 (7th Cir.1983) (noting in its recitation of the facts
that despite the fact father was not a citizen of the United
States, he had children who were natural-born citizens of the
United 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 of
the 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, CoDirector 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
this affidavit and handle the Governor's motion as a motion to dismiss for failure to state a claim rather than one for summary
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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 31021, 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 2122; 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, 911.
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 3816.
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 2324. 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 34 (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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( 1 )
FILED
OSAI I
OFFICE OF STATE ADMINISTRATIVE HEARINGS F E B 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,
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.
2
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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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New Jersey Is An Equal Opportunity Employer
State of New Jersey
OFFICE 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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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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The petitioners each testified as to the reason for their having filed an objection
to Mr. Obamas 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
1
I 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 certificate
based upon a view of the document on the internet.
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Not less than 1,000 voters of any political party may file a
petition with the Secretary of State on or before the 64th day
before a primary election in any year in which a President of
the United States is to be chosen, requesting that the name
of the person indorsed therein as a candidate of such party
for the office of President of the United States shall be
printed upon the official primary ballot of that party for the
then ensuing election for delegates and alternates to the
national convention of such party.
The petition shall be prepared and filed in the form and
manner herein required for the indorsement of candidates to
be voted for at the primary election for the general election,
except that the candidate shall not be permitted to have a
designation or slogan following his name, and that it shall
not be necessary to have the consent of such candidate for
President 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 therein
shall file a certificate, stating that he is qualified for the office
mentioned in the petition, that he is a member of the political
party named therein, that he consents to stand as a
candidate for nomination at the ensuing primary election of
such political party, and that, if nominated, he consents to
accept the nomination, to which shall be annexed the oath of
allegiance . . . .
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. Obamas 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 Obamas 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 Storys
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 Swaynes 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
2
The 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 who
shall be natural-born citizens there were some authorities who held that children born within the
jurisdiction without reference to the citizenship of their parents were citizens. The Court concludes that it
was not necessary to decide that issue in Minor. Wong Kim Ark more directly addresses the issue of who
is natural-born although it is acknowledged that neither of these cases involved the use of the term in
connection 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 this
country. And the decision does not suggest that the common law rule identified therein only applied at the
state level and not on a national basis, as counsel here claims.
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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.
The Wong Kim Ark Court then stated
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 only to the same exceptions [children of
ambassadors, etc.], since as before the Revolution.
[Wong Kim Ark, supra, at 169 U.S. 662-663, 18 S. Ct. at
462].
The Georgia Secretary of State recently denied a similar challenge to Mr. Obamas
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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- 8 -
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, 5
rd
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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EXHIBITS
3
For Petitioners
P-1 Letter dated July 29, 2010, from Rolbin to Strunk with attachment
P-2 Computer printoutDaylife
P-3 Photocopy of pages of Obamas High School YearbookOAHUAN
1979
3
Several 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 included
an affidavit of Timothy Lee Adams, an Order of the Alabama Supreme Court deemed irrelevant to this
case, and a photocopy of what on its face is a Selective Service Registration Form, which has no evidence
as to the authenticity of the document from which the internet copy was made.
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TAB F

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PRESENT:
HON. ARTHUR
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
-1-
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 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
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
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 S C H ~ C ~ J .S.C
HON. AR I J"lV1" .
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TAB H

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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
Richmond Division -!i
2
=-3-2-:;0I=-Z---' \ I
. \
I \
CHARLES TISDALE, CLERK U.S. DISTp:,
.. . ____ ..
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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Exhibit C
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CRS Report for Congress
Prepared 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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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 ones 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 18
th
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; McCains 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 law
7
(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. Sailors 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 kings 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 clauses 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 ones 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 (7
th
Cir. 1982), cert. denied, 462 U.S. 1132 (1983); Mustata v. U.S. Department of Justice, 179 F.3d 1017, 1019
(6
th
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 (9
th
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 (9
th
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 (5
th
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 Wont 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, 110
th
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 Madisons 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 Jays letter, and the September 4 draft of the Constitution reported from the
Committee of Eleven to the delegates, at a time shortly after John Jays letter had been
acknowledged by Washington, contained for the first time such a qualification.
32
The timing of
Jays 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 Jays 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 executives position of the United States,
including rumors involving Price Henry of Prussia, and the ascension of King Georges 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 Americas King. Similar
stories involved the ascendancy of King Georges 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 IIs 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
Constitutiona 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 Englands 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 monarchsthe 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 IIs 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 orderor 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 ones 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, AMERICAS 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 Cokes 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
Calvins 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 Blackstones 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 kings 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 (9
th
Cir. 1994), cert. denied, sub nom. Sanidad v.
INS, 515 U.S. 1130 (1995).
51
Calvins 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 kings dominions immediately
upon their birth. For, immediately upon their birth, they are under the kings 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 kings
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 Storys 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. Sailors 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
persons birth; and that the latter principle of citizenship by descent (because of the citizenship or
nationality of ones fatherjus 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 States 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 (9
th
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 Calvins 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 Dyers 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 kings 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 coloniesto 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 18
th
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 1700s, 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 Romneys 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
Elliots compilation and analysis of documents related to independence,
On the same day [14
th
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, Blackstones
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 [ELLIOTS 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 Blackstones 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 Blackstones 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 Blackstones 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 kings 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 terms 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 kings dominions, or allegiance, this also must be
understood with some restrictions. ... [T]he children of the kings 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 kings 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 ones 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 Congresss
understanding of the meaning of the terms of the Constitution was most contemporaneous in time
with the documents 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 18
th
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 (5
th
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 Vattels 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 (10
th
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 ns 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. Constitutions Article II, 1, cl. 5,
however, was interpreted as either citoyen-n ([a born citizen] John Stevens or Warren Livingston, EXAMEN DU
GOUVERNEMENT DANGLETERRE, COMPARE AUX CONSTITUTIONS DES TAT-UNIS, at 257 (Paris 1789)), or citoyen n
dans les tats-Unis, ([a citizen born in the United States], L.-P. Conseil, MLANGES POLITIQUES ET PHILOSPHIQUES,
Constitution Des tats-Unis, at 160 (Paris 1833), and M. Du Ponceau, EXPOS SOMMAIRE DE LA CONSTITUTION DES
TATS-UNIS DAMRIQUE, 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 Vattels 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
Farrands 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 nations duty to honor treaties (4 ELLIOTS 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 ones 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 ones 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 ELLIOTS 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
Vattels
writings on citizenship by descent reflected in many circumstances what the law or practice
may have been in certain European nations at the timethat is, that citizenship followed the
nationality or citizenship of ones father, as opposed to the place of birth.
109
This concept,
although prevalent on the European Continent was, even as expressly noted in Vattels 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 ones 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 Fields 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, 1
st
Cong., 1
st
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 ones 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.
BALLENTINES LAW DICTIONARY, at 831 (natural-born citizen) (3
rd
ed. 1969), and as A person born within the
jurisdiction of a national government, BLACKS LAW DICTIONARY, at 278 (natural-born citizen) (9
th
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), WEBSTERS 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 (7
th
Cir. 1982), cert.
denied, 462 U.S. 1132 (1983); Mustata v. U.S. Department of Justice, 179 F.3d 1017, 1019 (6
th
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, BLACKSTONES 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 Vattels 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 1800s 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. Taneys 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 19
th
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
Courts 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
Courts 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 naturalhome-born; and provides for the naturalization of such of them as were
alienforeign 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 birththe 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: Kents Com., vol. 2, part 4, section 25;
Bl. Com., book 1, chapter 10, p. 365; 7 Co. Rep., Calvins 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 Generals 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 ones 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 Calvins 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. Sailors 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 (2
nd
Cir.
1930); Diaz-Salazar v. INS, 700 F.2d 1156, 1160 (7
th
Cir. 1982), cert. den. 462 U.S. 1132 (1983); Mustata v. U.S.
Department of Justice, 179 F.3d 1017,1019 (6
th
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 Statesnatural 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 9
th

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 Yorks civil service law violates equal protection clause).
140
Price v. United States Immigration and Naturalization Service, 941 F.2d 878, 884-885 (9
th
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 (2
nd
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 Blackstones
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 ones 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, BLACKSTONES 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 10
th
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 appellants 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 (9
th
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 (10
th
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 Amendments 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 countrys 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 childs 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-Pillados 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 McCains 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 (9
th
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 Senators McCains 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 McCains
circumstances in the Canal Zone, Congress enacted 8 U.S.C. 1403(a), which declared that
persons in Senator McCains 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 ones parent or parents (jus sanguinis).
Legal Cases and President Obama
In addition to the lawsuits concerning Senator McCains 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 courtin that
the plaintiff or plaintiffs did not have legal standing, or for a failure to state a claim upon which
relief could be grantedor 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), affd 586 F.3
rd
234 (3
rd
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 office
175
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 candidates
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); affd 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., 3
rd
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), affd 612 F.3d 204
(3
rd
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
Presidents father was not a U.S. citizen at the time of the Presidents 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 Presidents 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 ones 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), affd 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), affd, Rhodes and
Taitz v. MacDonald, 368 Fed. Appx. 949 (11
th
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, 49
th
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 7
th
Circuit noted, in another context, in Herman v.
Local 1011, United States Steelworkers of America, 207 F.3d 924, 925 (7
th
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 candidates eligibility, it may be noted that the only
official documentation or record that had been publicly forwarded in the matter of President
Obamas 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
candidates 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 Pennsylvanias 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 (Obamas 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 Obamas 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 Presidents 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 candidates 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 Obamas 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 Obamas mother in a foreign country at the time of the
Presidents 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
Obamas 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 Obamas 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
10
th
Circuit, for example, the plaintiffs 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 courts dismissal of plaintiff/counsel
Bergs case, also noted the obvious lack of any merit in Bergs 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), affd 586 F.3
rd
234 (3
rd
Cir. 2009), cert. denied, 129 S.Ct.
920 (2009), noting plaintiffs 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 Plaintiffs complaint concerning questions about Senator Obamas 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. Craigs 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 (10
th
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 (6
th
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 plaintiffs counsel.
195
A federal district court in Georgia fined plaintiffs 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 Presidents eligibility by an attempt to press an interpleader claim,
the judge ordered plaintiffs 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 (3
rd
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), affd, Rhodes and Taitz v. MacDonald,
368 Fed. Appx. 949 (11
th
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 [counsels]
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 Presidents
father. As the Court noted in an earlier order, counsels 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 counsels conduct
was willful and not merely negligent. ... Her response to the Courts 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 Courts 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), affd 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 ones 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 parents
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 citizens 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 Obamas 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 lawthe 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 Statesas now argued by some advocatesthen 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 Statesthe 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 childs 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
207
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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 ones 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, 21
st
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 ones 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 majoritys
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 1800s, the publics economic fears and hostility
to foreigners led Congress toin the words of one historianlegitimize[ ] 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 5
th
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 Courts Wong Kim Ark decision, the United States Court of
Appeals agreed with the petitioners 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 Sandfords 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, BLACKSTONES 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 (5
th
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
persons 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 plaintiffs 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 (7
th
Cir. 1982), cert. denied, 462 U.S. 1132 (1983).
230
179 F.3d 1017, 1019 (6
th
Cir. 1999). Emphasis added. See also United States v. Carlos Jesus Marguet-Pillado, 648
F.3d 1001, 1006 (9
th
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 ones 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 Obamas 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
persons 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 ones 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.

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