Presidential Electoral College Certification Objection

7/30/2019 Presidential Electoral College Certification Objection

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Congr ess Shou ld No t Con f i r m Barack Obam a As Pres iden t ,

Fo r H e I s N o t a n A r t i c le I I " N a t u ra l Bo rn Ci t i z en "

Congress Should Not Confirm Barack Obama As President, For He Is Not anArticle II Natural Born Citizen

By Mario Apuzzo, Esq.

December 30, 2012

The joint session of Congress meets to

count the 2008 Electoral College vote

The issue of Obamas eligibility to be President has always been whether heis an Article II natural born Citizen. And that issue has always been aboutanswering two questions: (1) whether he was born in the United States and

(2) whether at the time of his birth in the United States he was born toUnited States citizen parents, for a natural born Citizen is defined as achild born in a country to parents who were citizens of that country. See

Mario Apuzzo, The Two Constitutional Obstacles Obama Has to Overcome tobe President, at http://puzo1.blogspot.com/2008/12/two-constitutional-

obstacles-obama-has.html (published on December 20, 2008).

Obama eligibility supporters like to focus on the first question, place of birth,

for it lends to so much controversy, speculation, and confusion. The place ofbirth question raises concerns about whether Obamas birth certificate, socialsecurity number, and draft registration card are false. Of course, for any of

that to be true would necessitate conspiracy among many individualsemployed by various state and federal government agencies. The charges of

conspiracy gives Obama's supporters great opportunity to ridicule and mockconcerned American citizens who--given that Obama has never released his
http://puzo1.blogspot.com/2012/12/congress-should-not-confirm-barack.htmlhttp://puzo1.blogspot.com/2012/12/congress-should-not-confirm-barack.htmlhttp://puzo1.blogspot.com/2008/12/two-constitutional-obstacles-obama-has.htmlhttp://puzo1.blogspot.com/2008/12/two-constitutional-obstacles-obama-has.htmlhttp://puzo1.blogspot.com/2008/12/two-constitutional-obstacles-obama-has.htmlhttp://puzo1.blogspot.com/2008/12/two-constitutional-obstacles-obama-has.htmlhttp://puzo1.blogspot.com/2012/12/congress-should-not-confirm-barack.htmlhttp://puzo1.blogspot.com/2012/12/congress-should-not-confirm-barack.html


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original birth certificate to any controlling government authority, Obama stillrefuses to give his consent to release to the public his birth, education,

travel, and work records, and some have uncovered unconfirmedinformation suggesting that Obama was born in Kenya--are still searching

for a conclusive answer to the question of whether Obama was born in the

United States. These Obama supporters bask in the ease by which they areable to attack those who, without any government or law enforcement

assistance, are still investigating Obamas place of birth with little resources

available to them. These Obama eligibility supporters also like to makeeveryone think that the place of birth issue seals a victory for Obama and

them. But such a statement is false.

These Obama eligibility supporters have not been able to adequately cast offeither by way of any current well-researched and reasoned court decision orotherwise the other requirement for being a natural born Citizen, i.e., that

the child must be born to parents who were citizens of the country when thechild was born. As we can see below, there is a great amount of historical,

U.S. Supreme Court, and Congressional sources that confirms this additionalrequirement which neither a handful of lower law and administrative courts--

which have ruled that they have no jurisdiction or plaintiffs have nostanding, but yet have still decided the merits of the question of whether

Obama is a natural born Citizen--nor these Obama eligibility supportershave been able to adequately address.

What does all this mean for Congress which on January 4, 2013 will be

counting the Electoral College votes and deciding whether President Elect

Barack Obama is constitutionally qualified to be President? Under Article I,II, and III, the legislative, executive, and judicial branches of governmentare each given specific and exclusive powers. This is our separation of

powers feature of our tripartite form of government. Under this doctrine,powers given to one branch are not to be exercised by any other. Under thisscheme and specifically under Article III, the power to interpret the

constitution is given solely to the judiciary. The Constitution does nottextually commit the resolution of the question of what is a natural born

Citizen to any specific branch of government other than the judicial branch.The question is no different from the question faced countless times by our

nations federal and state courts when deciding what the applicable eligibilityrequirements for any given elected office are. Hence, the constitutional

question of the meaning of a natural born Citizen is left to the judicialbranch to resolve.

Article II, Section 1, Clause 5 provides: No person except a natural born

Citizen, or a Citizen of the United States, at the time of the Adoption of thisConstitution shall be eligible to the Office of President; neither shall any


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person be eligible to that Office who shall not have attained to the Age ofthirty five Years, and been fourteen Years a resident within the United

States. Hence, natural born Citizen is one of the three exclusiveconstitutional eligibility requirements to be President found in this article,

with the other two being a minimum of 35 years of age and 14 years of U.S.

residency. As Powell v. McCormack, 395 U. S. 486, 519 (1969) explained, todetermine the nature and extent of constitutionally specified eligibility

qualifications is within the courts power to do. Id. at 522. Determining what

a natural born Citizen is involves determining the meaning of aconstitutional provision which is strictly within the power of the courts to

decide. It is a constitutional birth status. The Constitution gives to the courtsthe authority and the specific task of interpreting the Constitution, which

necessarily includes the words and clauses it uses. Natural born Citizen is aclause that exists in the Constitution. As Marbury v. Madison, 1 Cranch 163(1803) long ago established, our judicial branch of government is duty

bound to interpret the Constitution to provide meaning to its clauses and iswell equipped to do so. In fact, the courts have been doing just that since

the Founding. In fact, our judicial branch of government has for centuriesengaged in judicial review of matters involving citizenship. The courts are

therefore well equipped to interpret the Constitution which includesinterpreting and applying the natural born Citizen clause, whose decision

on the matter Congress must then respect.

In matter of citizenship, Congress has under Article I, Section 8, Clause 4,power only to make uniform the laws of naturalization. This power does not

include the power to define an Article II natural born Citizen. To grant

Congress the sole or any authority to decide what a natural born Citizen iswould also defeat the U.S. Supreme Courts constitutional mandate that it isthe ultimate interpreter of the Constitution. Nixon v. United States, 506

U.S. 224, 237 (1993). Indeed, Congress is constitutionally bound to followthe lead of the U.S. Supreme Court on the meaning and application of theConstitution. Apart from the First Congress in the Naturalization Act of 1790

considering as a "natural born citizen" a person born out of the United Statesto U.S. citizen parents which the Third Congress changed to considered as a

"citizen of the United States" in the Naturalization Act of 1795, and laterCongresses just applying the already existing definition of the clause and

providing a different definition of a citizen of the United States at birthunder the Fourteenth Amendment, neither the Constitution nor historical

practice show that Congress has ever taken it upon itself to define a naturalborn Citizen. Finally, for the Congress to take it upon itself to define a

natural born Citizen in a manner that is not consistent with U.S. SupremeCourt precedent would be an unconstitutional usurpation of judicial power

which belongs only to the U.S. Supreme Court.


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The Twentieth Amendment and 3 U.S.C. Sec. 1 et seq. provide a mechanismfor Congress to follow when meeting in joint session for the purpose of

counting the Electoral College votes and confirming the constitutionaleligibility of a President Elect to actually hold that office. But while Congress

surely has the power to count Electoral College votes and if necessary fully

investigate the question of a President Elects constitutional eligibility to bePresident and make a decision based on its own investigation, the extent of

its investigation can only go as far as its legislative and regulatory powers

allow it to go. Again, Congress has no direct power to define a natural bornCitizen. Defining a natural born Citizen also does not fall under any

investigation in aid of any legislative function. Also, the TwentiethAmendment does not commit to Congress the task of determining what a

natural born Citizen is, i.e., what is the definition of a natural bornCitizen. See Nixon, 506 U.S. at 237 (Our conclusion in Powell was basedon the fixed meaning of [q]ualifications set forth in Art. I, 2. The claim by

the House that its power to be the Judge of the Elections, Returns andQualifications of its own Members was a textual commitment of

unreviewable authority was defeated by the existence of this separateprovision specifying the only qualifications which might be imposed for

House membership. The decision as to whether a Member satisfied thesequalifications was placed with the House, but the decision as to what these

qualifications consisted of was not (citing and discussing Powell v.McCormack, 395 U.S. 486, 539 (1969)). See also Powell v. McCormack, 395

U.S. 486, 550 (1969) (in invalidating the House's decision not to seat aMember accused of misuse of funds, the Court held that in judging the

qualifications of its members Congress is limited to the standing

qualifications prescribed in the Constitution"). Surely, if Congress cannot addto those constitutionally prescribed qualifications for its own members, italso cannot take away from them. Giving Congress the power to define a

natural born Citizen with respect to presidential qualifications would do justthat, either add to the definition or take away from it and thereby impact onthe qualifications to be President. Hence, it is clear under Powell that it is the

U.S. Supreme Court which must determine the meaning of a natural bornCitizen, and not Congress.

When the matter in issue is eligibility for public office, the point is well made

by Justice Stevens in his concurring opinion in Nixon v. United States:

In Powell, the House of Representatives argued that the grant to Congressof the power to Judge the qualifications of its members in Art. I, 5,

precluded the Court from reviewing the House's decision that Powell was notfit for membership. We held to the contrary, noting that, although the

Constitution leaves the power to "Judge" in the hands of Congress, it alsoenumerates, in Art. I, 2, the qualifications whose presence or absence


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Congress must adjudge. It is precisely the business of the courts, weconcluded, to determine the nature and extent of these constitutionally

specified qualifications. Id., at 522. The majority finds this case differentfrom Powell only on the grounds that, whereas the qualifications 246*246 of

Art. I, 2, are readily susceptible to judicial interpretation, the term try

does not provide an identifiable textual limit on the authority which iscommitted to the Senate. Ante, at 238.

Nixon, at 245-46 (J. Stevens, concurring). The Constitution under theTwentieth Amendment gives to Congress the authority to decide whether a

President Elect is constitutionally qualified for that office. But it also specifiesin Article II, Section 1, Clause 5 what qualifications whose presence or

absence Congress must adjudge. And it is precisely the business of thecourts . . . to determine the nature and extent of these constitutionallyspecified qualifications. Indeed, these qualifications are readily susceptible

to judicial interpretation. Id.

So, while the members of the Senate and the House of Representatives arewell qualified to adjudicate any objections to ballots for allegedly unqualified

candidates, it is first the courts, interpreting and applying the eligibilitycriteria found in Article II, Section 1, Clause 5, which includes the natural

born Citizen clause, which must first inform them whether a President Electis constitutionally qualified for that office. To hold that Congress alone is

qualified to adjudicate objections to any unqualified president elect issimply to beg the question of that persons eligibility for that office.

So, does a settled definition of an Article II natural born Citizen exist whichCongress is constitutionally bound to apply when deciding whether Obama isArticle II eligible to be President? While the Constitution does not provide

any fixed meaning of the natural-born Citizen clause, there exist outsidethe Constitution specific standards for us to follow in deciding what thedefinition of a natural born Citizen is and whether Obama meets that

definition. These standards exist in historical, U.S. Supreme Court, andCongressional sources. For example, Minor v. Happersett 88 U.S. 162 (1875)

has held that a natural-born citizen is a child born in a country to parentswho were its citizens when the child was born. The unanimous U.S. Supreme

Court held there:

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 wasnever doubted that all children born in a country of parents who were its

citizens became themselves, upon their birth, citizens also. These werenatives or natural-born citizens, as distinguished from aliens or foreigners.


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Some authorities go further and include as citizens children born within thejurisdiction 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 ofthis 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.

Minor, at 167-68.

Then United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898) held that a

citizen of the United States under the Fourteenth Amendment is a childborn or naturalized in the United States and subject to the jurisdiction

thereof, but an Article II natural born Citizen is a child born in the UnitedStates to citizen parents, citing and quoting Minor v. Happersett and itsdefinition of the clause. The question that Minor did not answer, i.e.,

whether a child born in the United States to alien parents is a FourteenthAmendment citizen of the United States, was answered by Wong Kim Ark,

wherein the United States argued that a child born in the U.S. to alienparents was not a citizen of the United States under the Fourteenth

Amendment. Ruling against the government, Wong Kim Ark declared a childborn in the country to domiciled and resident alien parents to be a citizen of

the United States at birth under the Fourteenth Amendment. Wong KimArk, citing and quoting Minor and acknowledging its definition that a

natural-born citizen was born in the country to citizen parents, in no waydisturbed Minors definition of a natural-born citizen, for it was asked to

decide only if Wong was a citizen of the United States under the

Fourteenth Amendment. Wong Kim Ark also allowed Wong to be aFourteenth Amendment citizen of the United States because it found thathis parents, while not U.S. citizens, were, among other things, domiciliaries,

residents of the United States, and not working in some foreign diplomaticcapacity and therefore subject to the jurisdiction of the United States. SoWong decided only the citizen part of Wongs status. It never decided

whether he also had the natural born part. The Court cautioned in itsopinion in the beginning and at its end that it was only deciding whether

Wong was a citizen of the United States under the Fourteenth Amendmentand also informed us under what limited conditions (born in the U.S. to alien

parents who were domiciled and residing in the U.S. and not employed insome foreign diplomatic capacity) it ruled that he was. Hence, a Wong

citizen of the United States at birth is not to be conflated or confoundedwith an Article II natural born Citizen.

For a full analysis and discussion of these and other sources which confirm

that a natural born Citizen is a child born in a country to parents who werecitizens of that country, see, among other sources such as the various briefs


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that I have filed with the courts in New Jersey (Kerchner v. Obama; Purpuraand Moran v. Obama), Pennsylvania (Kerchner and Laudenslager v. Obama),

Virginia (Tisdale v. Obama), and Vermont (Paige v. Obama), and the manyarticles that I have written at my blog, http://puzo1.blogspot.com/ , Mario

Apuzzo, Barack Obama Is Ineligible to be President, For He Is Neither a

Natural Born Citizen Nor a Citizen of the United States, at the time of theAdoption of this Constitution, at

http://puzo1.blogspot.com/2012/10/barack-obama-is-ineligible-to-be.html

(wherein I demonstrate that a natural born Citizen has always beendefined in our nation as a child born in a country to parents who were

citizens of the country and that that definition has never been changed byconstitutional amendment or by the U.S. Supreme Court and that a citizen

of the United States at birth under the Fourteenth Amendment and WongKim Ark is not to be conflated and confounded with a natural born Citizen)and Mario Apuzzo, Logic and Defining the Natural Born Citizen Clause, at

http://puzo1.blogspot.com/2012/11/logic-and-defining-natural-born-citizen.html (where I show how some lower courts and Obama eligibility

supporters have engaged in fallacious logical reasoning in how they havedefined a natural born Citizen).

Having found and confirmed the time-honored definition of a natural born

Citizen, Congress must then apply that definition to Obama. Assuming thatObama was born in Hawaii, the undisputed facts show the following:

When Barack Obama Jr. was born on Aug. 4, 1961, in Honolulu, Kenya was

a British colony, still part of the United Kingdoms dwindling empire. As a

Kenyan native, Barack Obama Sr. was a British subject whose citizenshipstatus was governed by The British Nationality Act of 1948. [http://www.uniset.ca/naty/BNA1948.htm ] That same act governed the

status of Obama Sr.s children:

British Nationality Act of 1948 (Part II, Section 5): Subject to the provisions

of this section, a person born after the commencement of this Act shall be acitizen of the United Kingdom and Colonies by descent if his father is a

citizen of the United Kingdom and Colonies at the time of the birth.

In other words, at the time of his birth, Barack Obama Jr. was both a U.S.citizen (by virtue of being born in Hawaii) and a citizen of the United

Kingdom and Colonies (or the UKC) by virtue of being born to a father whowas a citizen of the UKC.

Obamas British citizenship was short-lived. On Dec. 12, 1963, Kenya

formally gained its independence from the United Kingdom. Chapter VI,Section 87 of the Kenyan Constitution specifies that:
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1. Every person who, having been born in Kenya, is on 11th December,

1963 a citizen of the United Kingdom and Colonies or a British protectedperson shall become a citizen of Kenya on 12th December, 1963

2. Every person who, having been born outside Kenya, is on 11th December,1963 a citizen of the United Kingdom and Colonies or a British protected

person shall, if his father becomes, or would but for his death have become,

a citizen of Kenya by virtue of subsection (1), become a citizen of Kenya on12th December, 1963.

As a citizen of the UKC who was born in Kenya, Obamas father

automatically received Kenyan citizenship via subsection (1). So given thatObama qualified for citizen of the UKC status at birth and given thatObamas father became a Kenyan citizen via subsection (1), it follows that

Obama did in fact have Kenyan citizenship after 1963.

http://www.factcheck.org/2008/08/obamas-kenyan-citizenship/ . ToddLeventhal, the chief of the Counter-Misinformation Team for the U.S.

Department of State, has accepted as true this description of Obamas birthcircumstances and so stated on a State Department web page,

http://blogs.america.gov/rumors/2009/08/21/the-obama-birth-controversy/, This site now reads: This site has been archived or suspended.

Factcheck, in its attempt to show that Obama is a natural born Citizen,

added: [T]he Kenyan Constitution prohibits dual citizenship for adults.

Kenya recognizes dual citizenship for children, but Kenyas Constitutionspecifies that at age 23, Kenyan citizens who possesses [sic] citizenship inmore than one country automatically lose their Kenyan citizenship unless

they formally renounce any non-Kenyan citizenship and swear an oath ofallegiance to Kenya.

Since Sen. Obama has neither renounced his U.S. citizenship nor sworn anoath of allegiance to Kenya, his Kenyan citizenship automatically expired on

Aug. 4, 1984.

Id.

But that Obama may have lost his British/Kenyan citizenship after his birth(there is no evidence that Obama ever renounced his British birth

citizenship), like an alien losing his or her native citizenship later in life andbecoming a U.S. citizen after birth, does not nor can it change his birth

circumstances. He still was not born a natural born Citizen and cannotbecome one later in life.
http://www.factcheck.org/2008/08/obamas-kenyan-citizenship/http://blogs.america.gov/rumors/2009/08/21/the-obama-birth-controversy/http://blogs.america.gov/rumors/2009/08/21/the-obama-birth-controversy/http://www.factcheck.org/2008/08/obamas-kenyan-citizenship/


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So, Obama, even if born in Hawaii in 1961, while born to a U.S. citizen

mother, was not born to a U.S. citizen father. Under the British NationalityAct 1948, Obamas father, being born in Kenya when it was a British colony,

was a British/Kenyan citizen. While he traveled to the United States on a

student visa to study, he never became a U.S. citizen. Under the sameBritish Nationality Act 1948, Obama himself, through inheritance from his

father, was born a British citizen. Under the Kenya Independence Act 1963,

also became a Kenyan citizen as age 2.

The Founders and Framers demanded that future presidents, who also wereto be our commanders in chief of the military, have allegiance and loyalty

from birth only to the United States. Being born the citizen of a foreigncountry, like a person who is born a citizen of a foreign country and whonaturalizes to become a citizen of the United States after birth and who we

have always recognized as being eligible to be President only if born beforethe adoption of the Constitution, Obama was not born with sole allegiance

and loyalty from birth to the United States. The practical consequence of hisbirth which no one can change is that he not only was not born with unity of

allegiance and citizenship to the United States, but he also was not bornwithin the full and complete political and military jurisdiction of the United

States. So, Obama from birth was not fully committed both politically andmilitarily to the United States, nor could the United States expect such total

commitment from him. Obama therefore cannot be an Article II naturalborn Citizen, which under our Constitution is required only of the President,

who is also the Commander in Chief of the Military, and the Vice President.

who stands to take over the Presidents civil and military powers should theneed arise.

Apparently, if he was born in Hawaii, Obama can meet the more liberaldefinition of a Fourteenth Amendment citizen of the United States at birth,i.e., born in the United States and subject to the jurisdiction thereof. Under

this definition, a child born in the United States to domiciled and residentalien parents is a citizen of the United States at birth. Wong Kim Ark. But

he cannot meet the more stringent definition of an Article II natural bornCitizen, which only applies to presidential and vice presidential eligibility,

born in the United States to citizen parents. Minor. Since, Obama is neithera natural born Citizen nor a citizen of the United States, at the time of the

adoption of this Constitution (was adopted in 1787), Obama is not eligibleto be President and Commander in Chief.

One might ask what Congress can possibly do at Obamas January 4

confirmation hearing given that it has already once confirmed him to beeligible and he has already served one term as President. That Obama has


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been President for the last four years does not mean that he is aconstitutionally legitimate president. Rather, given that Obama is not Article

II eligible to be president, he has acted as a de facto president but not a dejure one. A de facto president is a president who is not constitutionally

legitimate but who has usurped the office and its powers and who because

of practical reasons is tolerated for the time he occupies and exercises thepowers of the office, but who can be legally removed through a prescribed

legal process. On the other hand, a de jure president is a president who is

constitutionally legitimate. Needless to say, tolerating a de facto president(one that is not a natural born Citizen) rather than a de jure president not

only renders Article IIs presidential eligibility requirement meaningless,flouts the rule of law, and is inimical to a constitutional republic such as the

United States of America, but puts the safety and security of our nation atrisk.

Our historical precedents have spoken as to who is a natural born Citizen.The U.S. Supreme Court has confirmed the definition to be a child born in

the country to citizen parents. Congress is constitutionally bound to applythis definition to Obama. Congresss failure to apply this definition to Obama

and to again declare him President of the United States would amount tonothing more than treason upon the constitution and the nation by allowing

a de facto president to continue in that all powerful office for a second termrather than a constitutionally legitimate one. The fate of the nation is in the

hands of Congress on January 4, 2013.

Mario Apuzzo, Esq.

December 30, 2012http://puzo1.blogspot.com####

Copyright 2012Mario Apuzzo, Esq.

All Rights Reserved
http://puzo1.blogspot.com/http://puzo1.blogspot.com/


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Presidential Electoral College Certification Objection

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