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by Joseph DeMaio, ©2019

Image credit: Wikimedia Commons, CC BY SA 3.0

(Jun. 28, 2019) — Well, well, well…, who woulda thunk?  Following the first round of Democrat Loser Debates, it seems that a consensus is developing that the junior representative from Hawaii, Ms. Tulsi Gabbard may just be rising in the polls.  In an unofficial “poll” conducted online by The Drudge Report during and following the debate, some 40% of around 50,400 respondents picked Gabbard as the winner of the debate, with her closest 2nd place rival, Sen. Elizabeth Warren, coming in at less than 12.5%.

Say what?  A relatively unknown representative from Hawaii gets more than three times the number of votes than her second-place, far more well-known competitor, Senator Warren?  While the poll sample size is minute compared to the entire electorate, what is up with that?  Perhaps it is because (a) Gabbard is a military veteran, having served in Iraq and now commissioned as a full major in the Hawaii Army National Guard; (b) she decimated Congressman Tim Ryan (Ohio) by correcting him that it was members of Al Qaeda, not the Taliban, who destroyed the World Trade Center towers on 9/11/01; and (c) she hails from a state that has already given us Barack Hussein Obama II.

Wait a second… while Obama claims to have been born in Hawaii, faithful P&E readers know two things: (1) that assertion is likely false or, at minimum, unsubstantiated, and (2) even if true, the documentation he has supplied seems clearly to establish in any event that he is not (and was not when he usurped the presidency) a “natural born Citizen” as required under the Constitution.

But what about Gabbard?  Apart from most of her goofy ideas and positions trending toward the radical-progressive wing of the Democrat Party (she was a vice-chair of the “Democratic [sic] National Committee” for a brief period of time before resigning to endorse Bernie Sanders for president in 2016… not the smartest move…), there is another impediment she will likely face.  She, along with another Democrat presidential-wannabe, Kamala Harris, must prove that she is eligible as a “natural born Citizen” under Art. 2, § 1, Cl. 5 of the Constitution.

This task arises, of course, because although from all appearances, both of her parents – Carol (née Porter) and Mike Gabbard – were both already U.S citizens on April 12, 1981, Tulsi Gabbard’s birth did not take place within the United States.  Rather, it took place in Leloaloa, Maoputasi County, American Samoa.  As faithful P&E readers also know, under the provisions of § 212 of Emmerich de Vattel’s The Law of Nations – and upon which tome the Founders “continually relied” while drafting the Constitution, including the “natural born Citizen” restriction of Art. 2, § 1, Cl. 5 – in order for one to satisfy the eligibility restriction, not only must the child’s parents be citizens of the nation where the birth occurs, the birth must take place on that nation’s soil.

This is where it gets sticky.  While American Samoa is a “territory” of the United States, it is not an “incorporated territory.”  This is the same issue that faced Sen. John McCain in 2008, when he faced off against Monsieur Obama as discussed here.  Among several issues in McCain’s case was whether he was born at the Coco Solo Naval Air Station hospital, a U.S. military base in the Panama Canal Zone, or whether he was born in a hospital in Colón, Panama, which has never has been a part of the United States.  Parenthetically, in a case challenging his eligibility – Hollander v. McCain, 566 F. Supp. 2d 63 (D.N.H. 2008) – the record indicated that a copy of McCain’s birth certificate was received in evidence, with the judge stating that the birth certificate “lists his place of birth as Colón.”  Id. at 65.

At the time of his birth (1936), the Panama Canal Zone was an unincorporated territory under the control of the United States.  However, the United States Supreme Court had ruled 35 years earlier that unincorporated territories, even if under the control of the United States, are not, prior to formal action by the Congress, a part of the United States.  Downes v. Bidwell, 182 U.S. 244 (1901).  Thereafter, the Court ruled that the full spectrum of the Constitution’s provisions apply only in incorporated territories of the United States, thereby excluding from that full spectrum its application in unincorporated territories.  Rassmussen v. United States, 197 U.S. 516 (1905).

Before anyone jumps to the erroneous conclusion that this means that the natural born Citizen restriction would not apply at all to a person born in American Samoa (or any other unincorporated territory of the United States), note that the Rassmussen case involved only the question of whether a person’s constitutional rights under the 6th Amendment applied at all in the Territory of Alaska and not whether the mandates of other constitutional provisions applied.

In addition, the Downes case affirmed the principle that, whether a territory was already “incorporated” into the United States by act of Congress or not, “[o]ur Constitution, in its operation, is co-extensive with our political jurisdiction…,” citing The City of Panama, 101 U.S. 453, 460 (1879).  Thus, the Supreme Court has seemingly confirmed that the mandate of Art. 2, § 1, Cl. 5 of the Constitution – the “natural born Citizen” eligibility restriction clause – would be and is, as intended by the Founders, applicable to a child born to U.S. citizen parents anywhere, including, as to Senator McCain, the Panama Canal Zone or, as to Representative Gabbard, American Samoa.

This conclusion is also fortified by recognition that, after enacting 1 Stat. 103, the “1790 Naturalization Act,” declaring children born to U.S. citizen parents “beyond sea” (i.e., not in the United States) to be “considered” as natural born citizens, Congress repealed altogether that law by enacting 1 Stat. 414 in 1795, the “1795 Naturalization Act.”  The title of the 1795 act was: “An Act to establish an [sic: so in original] uniform rule of Naturalization; and to repeal the act heretofore passed on that subject.”  (Emphasis added)

There is no indication in the 1795 Act’s title of any intent to preserve the “considered as natural born citizens” modifier of the children affected.  Instead, there is a clear objective of totally repealing that provision along with the rest of the prior statute.  In so doing, Congress changed the language of the prior law by declaring that such children born “beyond sea” would thereafter be considered “citizens,” but not “natural born citizens.”

So what does all of this mean for Tulsi Gabbard?  It seems to mean the same thing as for Kamala Harris.  Until an insouciant Supreme Court finds the backbone to undertake an examination of the “natural born Citizen” issue under Art. 2. § 1, Cl. 5 in a live “case or controversy,” we will need to remain satisfied with watching the Democrat circus stumble forward laboring under the belief that both Harris and Gabbard (and perhaps others) are constitutionally eligible.  Both are likely ineligible.

Time to go make some more popcorn.

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  1. Email sent to Tulsi on 8-1/2-2019 via TulsiOffice@mail.house.gov and tulsi@tulsigabbard.com :



    WHO FORMALLY VETTED YOU AS A U.S. CONSTITUTION “natural born Citizen” (nbC)? Anyone? Elections officials?

    Show me and 329,000,000 other United State citizens “your papers” that you are a 100% irrefutable “natural born Citizen”, or else, you remain a fugitive nbC-criminal!

    JD Mooers

  2. McStain would have been an NBC according to Vattel §217, but he wasn’t according to Minor v. Happersett.
    If he had been honest, he would have sought the opinion of the Supreme Court but of course, he wasn’t and we got SR511 instead.

  3. With the outrageous ruling essentially barring the citizenship question on the census, deciding vote from compromised CJ Roberts (remember obamacare,) I would not trust SCOTUS taking on the issue of eligibity. We are losing the argument until we have a HUGE champion. We are no closer to having an effective voice in the mainstream. Big voices like levin and rush limbaugh know the truth about obama but are cowards and those that try like Sheriff Arpaio and Mongomery are litigated into silence.

  4. Sharon Mercer, to reference the crs maskell memo makes any argument you might have about tulsi gabbard being a NBC not only laughable but ignorant. Aso, look at the link I posted and explain this: :Washington, D.C. – Thursday, Congresswoman Aumua Amata was pleased to confirm that the House Natural Resources Committee has reaffirmed their commitment to hold a hearing to examine the need for a streamlined citizenship choice for those individual U.S. Nationals in American Samoa that want citizenship. While many American Samoans are happy with their status as US Nationals many American Samoans, especially those on the mainland choose naturalization often for purposes of military promotions, security clearances, along with other employment or personal reasons.” Whenever you’re ready.

  5. Sharon Mercer, Like McCain, who also had two U.S. Citizen Parents, Gabbard was NOT born on U.S. soil (either in a fully incorporated territory or a State) regardless of her parents being U.S. Citizens. While persons born in American Samoa are “Citizens” of the U.S. they are NOT “Natural born Citizens” of the U.S. McCain was born in Colon, Panama to two U.S. Citizens. HE had dual Panamanian/ U.S. Citizenship and was NOT an NBC.

  6. Sharon Mercer: Read this analysis of the 2011 CRS Memo (aka the 2nd CRS memo) and how key parts of legal citations and information, that disputes their ultimate conclusion therein, was omitted from the document, which makes said CRS Memo a piece of political antii-constituional disinformation put out by the CRS to members of Congress in both parties to provide cover for their inaction regarding the ineligibility of people for the Presidency in both parties, and to hide behind — Bombshell: Second CRS Memo Covering for Obama’s Ineligibility Not Released to the Public…Until Now: http://www.thepostemail.com/2011/05/29/bombshell-second-crs-memo-covering-for-obamas-ineligibility-not-released-to-the-public-until-now/

  7. Birth in American Samoa does NOT qualify as being born “In the United States” for Article II purposes, even if her parents were U.S. Citizens. American Samoa is NOT a fully incorporated territory of the United States. The sole fully incorporated territory of the U.S. at this time is Palmyra Atoll which is under full sovereign control of the U.S. If a person is born on Palymyra Atoll to two U.S. Citizen Parents he/she would be a Natural Born U.S. Citizen. Those born in American Samoa, Puerto Rico, Guam, U.S. Virgin Islands and the former Panama Canal Zone are NOT “Natural Born Citizens”. John McCain was said to be born in the PCZ but he was NOT. In any event, the PCZ was never incorporated territory of the U.S. McCain was born in Colon, Panama, which like Panama City, Panama was specifically excluded from the parameters of the PCZ, by treaty. In 2008 BOTH major party candidates were ineligible to be President or VP. Gabbard is NOT an NBC and is therefore constitutionally barred from being President or VPOTUS. I am sure Mario would agree.

  8. Miki: As far as what I know as of now, Tulsi’s parents were alleged to be U.S. Citizens when she was born in American Samoa. If true then Tulsi would have been a U.S. Citizen born Abroad to U.S. Citizen parents. So she is not likely the lesser status of being a U.S. National but not a basic U.S. Citizen. More information is needed. I don’t know if the parents would have had to file a consular report of the birth of their child outside the USA such as what should have been done for Ted Cruz’s birth in Canada. But being a Citizen at Birth does not of course automatically make her a “natural born Citizen” at Birth to constitutional standards. See: https://cdrkerchner.wordpress.com/2011/07/07/trees-are-plants-but-not-all-plants-are-trees-natural-born-citizens-nbc-are-citizens-at-birth-cab-but-not-all-cab-are-nbc-2/ American Samoa is a very unique case and I look forward to a legal expert on citizenship matters such as Atty Mario Apuzzo (http://puzo1.blogspot.com) to expound more about Tulsi Gabbard’s exact status and what paperwork was required to be filed for her by being born in American Samoa to a U.S. Citizen or Citizens while they were there. Tulsi needs to come forth with more information about her birth registration status and paperwork filed when she was born in American Samoa. But like Kamala Harris it appears that Tulsi’s handlers are content to keep the waters muddy and unclear about he exact birth status and citizenships and allegiances. For example is Tulsi considered a Citizen of American Samoa by birth. Questions that need answers. I don’t have enough information at this point.

  9. http://hawaiifreepress.com/ArticlesMain/tabid/56/ID/23766/First-Congressional-Hearing-on-Citizenship-Choice-for-Individual-American-Samoans.aspx?utm_source=Copy+of+June+23%2C+2019+News+from+HawaiiFreePress++&utm_campaign=June+23%2C+2019+Email+9am&utm_medium=email #HareKrishnaTulsiGabbard is at best a US National. As a citizen of Samoa she is in no way close to being a Natural Born Citizen as required by the Constitution to run for president. Neither is #heelsupharris whos parents were not citizens when she was born.

  10. Unless one is born IN the U.S. to parents who are both U.S. Citizens themselves they are NOT “Natural Born [U.S.] Citizens. Gabbard and Harris are not just “likely ineligible”. They are incontrovertibly NOT eligible. At this time in our History there is only ONE fully incorporated territory of the U.S. and that is Palmyra Atol. Those born on PA to parents who are both U.S. Citizens themselves are NBCs. Those born in an unincorporated territory even to U.S. Citizen parents (“Parents Citoyens” See: Vattel) are NOT NBCs. McCain was born in Colon, Panama. I have a copy of his BC. Colon, Panama and Panama City, Panama were never part of the PCZ, by treaty. In any event, the PCZ was never incorporated. Those born in American Samoa, Puerto Rico, U.S. Virgin Islands and Guam are NOT born on U.S. soil. The U.S. Supreme Court HAS already determined what an NBC is. In a 9-0 unanimous decision made in Minor v Happersett, (1874) the court said that there was no doubt that persons born in the U.S. to parents who are both U.S. Citizens themselves are Natural Born Citizens. As to other types of Citizens born in the U.S. without regard to their parents citizenship there IS doubt. This ruling is precedential and has been referred to and/or reaffirmed in other USSCt. cases such as The Venus, Shanks v Dupont and Wong Kim Ark. The court did not revisit these precedents when they had opportunity to do so in Laity v NY and Obama and Laity v NY, Cruz, Rubio and Jindal. The precedent in Minor v Happersett and the other cases referenced remains to this day “Good Law”.

  11. Joseph DeMaio: Well done. An excellent and timely piece. SCOTUS needs to stop “avoiding the issue” as Justice Thomas once stated during a congressional committee hearing and take a case or controversy that is direct on presidential eligibility and the natural born Citizen term and stop the courts ducking the issue using technicalities such as standing and political question, etc. Otherwise we are going to get more and more Obama, Harris, Cruz, Rubio, et al candidates with questionable “natural born Citizen” status and thus the attendant “sole allegiance” at birth, the other side and purpose and understanding by the founders and framers of that natural born Citizen term coin.