Reply #2: The Controversial Rutherford B. Hayes Presidency

[Adelante]

Native and Natural Born Citizenship Explored has three extremely interesting pieces up, which should be read in concert, and in their entirety, by anyone interested in the non-question of President Obama's eligibility. Proving there is nothing new under the sun in American politics, they date to the controversial (who knew?) Rutherford B. Hayes presidency.

What people seem to have forgotten is that in the 19th Century, Congress was faced with a very similar situation in the Election of President Hayes. We can observe how Congress approached matters in those days, their reasoning and the outcome. For instance, Congress considered a bill in which the title of the President Elect could be challenged in Court, either the Supreme Court, or the Circuit Court if the Supreme Court lacked original jurisdiction. Senators strongly opposed this and argued that having the outcome of the elections decided by the judiciary was counter to the idea of the Founders, that the title of President could only be addressed by Congress via the 12th Amendment (the 20th Amendment did not exist yet) and that once a President was elected, his election was to last 4 years, even if errors were made as the decision to elect a President would be final and irrevocable.

What history shows is that when Congress had to deal with a similar situation as to whether or not a duly elected President’s title could be tried. And they clearly show that

1. Congress is the final arbiter per 12th amendment and its decision is final, and irrevocable, even if later found to be in error.

2. There is no place for the judiciary to decide on Presidential election. This means that the use of Quo Warranto to try the title for Presidency is not provided for.

The New York Times, on June 20, 1882, published an article explaining that an attempt by Congress to allow the title of the President to be tried by Quo Warranto had been defeated. Most relevant are the comments by Mr. Hewitt who “did not approve the bill, and he remarked that be was satisfied that no man installed in the office of President could be ousted before the expiration of his four years by any method except revolution.”

The Steinkauler case, which I discussed before, is very relevant. First it established that the term ‘native born’ is equivalent to the term ‘natural born’ and that a ‘native born American citizen … can become President of the United States’. Furthermore, his native born nationality can be supplemented with an acquired nationality without him losing his native born status as long as he decides when reaching the age of majority to take his nationality of birth. The logical consequence is that since Obama was born on US soil, he was a native/natural born citizen of the United States, even though his status was also governed by the British Nationality Act of 1948. Since Obama chose to not pursue his secondary nationality which he ‘acquired’ through his father and since noone can deny him his birthright, Obama had the right to determine when reaching the age of majority, if he wanted to continue his birthright US citizenship. In addition, even if Obama acquired Indonesian citizenship, in contradiction of Indonesian laws, his parents cannot deprive him of his birthright US citizenship and since Obama returned to the US well before reaching the age of majority, has never abandoned his birthright citizenship.