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by Joseph DeMaio, ©2019

By United States Congress – Office of Congresswoman Tulsi Gabbard, Public Domain, https://commons.wikimedia.org/w/index.php?curid=23633337

(Jul. 10, 2019) — OK, P&E readers, stick with me here for a while, as this may get a bit convoluted.  Recently, your faithful servant offered this post positing that Rep. Tulsi Gabbard is likely not a “natural born Citizen” as required for eligibility to the presidency under Art. 2, § 1, Cl. 5 of the Constitution.  The term “likely” is used because there is – as yet – no U.S. Supreme Court decision directly on point with regard to a “ripe” “case or controversy” addressing the underlying “natural born Citizen” eligibility issue.  Yes, Minor v. Happersett, 88 U.S. 162 (1874) is really close, but not dispositive.

The long and short of that post was that because the place of Ms. Gabbard’s birth – American Samoa – is an unincorporated territory under the jurisdiction of the United States, but not a state incorporated into and within the United States, she would not meet the criteria of a “natural born Citizen” as articulated in the Constitution or in § 212 of Emmerich de Vattel’s The Law of Nations.

De Vattel’s tome, relied upon by the Founders when they were drafting the Constitution in 1787, was recently acknowledged by the Supreme Court as being the work of “the founding era’s foremost expert on the law of nations.”  See California Franchise Tax Board v. Hyatt, 139 S. Ct. 1485, 1493-1494 (2019).  So much for the haughty and denigrating characterization of de Vattel by the Congressional Research Service (“CRS”) with regard to the issue of presidential eligibility.  That prior post, however, focused on Rep. Gabbard’s purported eligibility under the “natural born Citizen” clause in Art. 2, § 1, Cl. 5.  The issue was first addressed earlier this year, with one legal scholar opining that if she becomes a viable presidential candidate, the eligibility issue will surface “absolutely.”

However, Ms. Gabbard may face another problem under Art. 1, § 1, Cl. 2 of the Constitution, which states: “No Person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States….” (Emphasis added).  Unless Ms. Gabbard is already a naturalized U.S. citizen, either through the formal application process or as the beneficiary of a “private bill” of naturalization, she does not appear to meet the eligibility criteria of the Constitution for Members of the House of Representatives.

Stated otherwise, she needed to be both a “citizen” of the United States and possessed of that status for seven years prior to first taking her seat in the House in 2013.  Quite apart from whether she is a “natural born Citizen,” she also may not be eligible to serve in the House, since American Samoa is not an incorporated territory of the United States and people born there are deemed to be “nationals” of the U.S., but not “citizens.”  Congress could change that, but has not yet done so.

This result is mandated by a federal statute, 8 U.S.C. § 1408 and as confirmed by federal appellate (but as of yet, not U.S. Supreme Court) decisions.  See, e.g. Tuaua v. United States, 788 F.3d 300 (D.C. Cir. 2015), cert. denied, 136 S. Ct. 2461 (2016).  While the denial of review via certiorari by the Supreme Court is not a decision on the merits of a particular case, it is nonetheless indicative of the Court’s view that the lower court’s decision was not sufficiently “wrong” or “problematic” to warrant acceptance of the case for review.  In other words, the Supreme Court apparently did not consider the D.C. Circuit Court opinion – holding that the “Citizenship Clause” of the 14th Amendment did not guarantee birthright citizenship to persons born in American Samoa – to be in need of correction via acceptance of the certiorari petition.

There are those who would nonetheless argue that, under federal law, purportedly, Ms. Gabbard possesses citizenship as a “citizen by birth” because her mother was born in Indiana and her father, although born in American Samoa, was born to a U.S. citizen father.  The contention is based not directly on federal statutory “law” (i.e., 8 U.S.C. § 1408), but rather on a “policy manual” issued by the U.S. Citizenship and Immigration Services Division of the Department of Homeland Security.  That policy manual references §§ 301 and 309 of the 1952 Immigration and Nationality Act, corresponding, respectively, to present-day 8 U.S.C. §§ 1401 and 1409.

The first section deals with the acquisition of “citizenship at birth” and the second section deals with the citizenship status of “children born out of wedlock,” an issue not present in Ms. Gabbard’s case.  However, the policy manual also lists – unlike the “outsidethebeltway.com” link referenced in the preceding paragraph above – 8 U.S.C. § 1408, which, as already noted, is entitled: “Nationals but not citizens of the United States at birth.”  Until held unconstitutional or changed, that statute controls.

Thus, the arguments advanced by the “outsidethebeltway.com” website parallel those made by the CRS, i.e., that citizenship acquired “at birth” or “by birth,” without more, qualifies one not only as a “citizen,” but also renders that person a “natural born Citizen” for Art. 2, § 1, Cl. 5 presidential eligibility purposes.  Wrong, but par for the course for the CRS and, apparently, for the folks at the website.  The bottom line is this: unless Tulsi Gabbard was naturalized as a U.S. citizen at least seven years prior to 2013, when she first took her seat in the House of Representatives, or naturalized at least seven years prior to 2018, when she was re-elected to her current term in the House, she appears to be ineligible as a Representative from Hawaii under Art. 1, § 1, Cl. 2 of the Constitution.

However, because the House (and the Senate) possess under Art. 1, § 5, Cl. 1 of the Constitution exclusive jurisdiction to judge the “Qualifications of its own Members…,” the fact that Ms. Gabbard may not be constitutionally eligible – an issue separate and distinct from her qualifications – would likely never be subjected to judicial challenge, as the courts would likely refuse to hear the dispute on the grounds that it was a “political question,” the entertaining of which would violate the “separation of powers.”  And even if challenged by another Member of the House, the likelihood of Speaker Pelosi bringing an expulsion motion to the floor for a vote is, on a scale of 1 to 10, a negative 13.

The legal issue as to whether the federal statute declaring persons born in American Samoa to be U.S. “nationals” but not U.S. “citizens” violates the 14th Amendment is apparently being litigated by another individual in Utah (a person born in Samoa, but not a member of Congress), but its status is unclear.  Your faithful servant will monitor that case and report back.

Finally, none of the foregoing should be taken to derogate Ms. Gabbard’s service to the nation in the military, both in Iraq and in the Hawaii National Guard, but only to question her eligibility to serve in the U.S. House of Representatives, her liberal/progressive policies aside.  If any faithful P&E reader has contrary information as to her bona fides, yours truly would be pleased to know of it.

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  1. The term of art “Natural Born Citizen” and “Citizen” are not tantamount. Neither is the term “Born a Citizen” since one can be “Born a citizen” without being a “Natural Born Citizen”. ALL Natural Born Citizens are citizens but all citizens are NOT Natural Born Citizens.

  2. Adrien, Gabbard is NOT a Natural Born Citizen. One born in the United States to parents who are both U.S. Citizens themselves. Gabbard was born in American Samoa so she does NOT meet the U.S. Jus soli (of the soil of the U.S.) requirement in the SCOTUS defined term of art “Natural Born Citizen” (See: Minor v Happersett). Gabbard cannot be President of the U.S.

  3. As I read and read and read about the subject of Obama’s eligibility I wondered under what statute he obtained citizenship. After about 4 years I finally found the answer. It does not pertain to Tulsi’s situation. Instead the US Code dictates that:
    §1401. Nationals and citizens of United States at birth:
    (c) a person born outside of the United States and its outlying possessions of parents *both of whom are citizens of the United States*…

    Since both of her parents were US citizens (assuming her mother was not born of tourists or Embassy foreign staff) she AUTOMATICALLY inherits U.S. citizenship from them. It doesn’t matter where she was born but it matters only that one of her parents once lived in the U.S.

    But if one of her parents had not been a citizen then Tulsi HAD to have lived in the US for five year prior to her 18th birthday (as Obama did via living in Hawaii with his grandparents) otherwise her PROVISIONAL citizenship would have expired at 18 and she would then have to have been naturalized to obtain citizenship.

  4. I have not verified it, but assuming Tulsi Gabbard’s mother was a USA citizen when Tulsi was born in American Samoa then Tulsi is a citizen of the USA and not just a national of the USA, so she would meet that part of the eligibility requirement for US representatives. Her presidential eligibility is another kettle of fish altogether and is in serious doubt.

  5. got panic?



    General-President Washington: REVOLUTION
    Developer-President Trump: RENOVATION


    General Washington had to fight (and sometimes kill) Loyalists at home who were loyal to The Crown. Today, Trump has to fight his own mutinous U.S. Government, led by second in line to replace Trump, Treason-Speaker of the House, Nancy Pelosi.

    I believe NANCY-BARRY-VALERIE-HILLARY-COMEY et al ARE CANDIDATES FOR THE GALLOWS for fomenting a MONARCHY OF ANARCHY which threatens to impeach our Constitutional Republic. https://petitions.whitehouse.gov/petition/impeach-nancy-pelosi-crimes-treason

    It appears that “United States citizen” is an evolving, unsettled “political question” issue, which one might reasonably expect from any made-up contemporary man-made laws. However, given the unique massive power vested in the U.S. President and Vice-President, there should never be, or never have been, any doubt as to exactly what was/is/will be meant by “natural born Citizen”-President and Vice-President 1789- 2019 and beyond.

    It appears that “citizen” can be anything Congress duly allows it to be, but “natural born Citizen” can only be “born in USA to USA citizen-parents” which LAW ENFORCEMENT, not Supreme Court involvement, should mandate. When will AG Barr ENFORCE all presidential candidates to verifiably be “born in USA to USA citizen-parents”?

    Isn’t it true that in 1789, “natural born Citizen” President meant any white propertied Protestant male over the age of 35 who had resided in the U.S. for at least 14 years? In 1789, Blacks and women were excluded from being President and Vice-President, correct?

    Isn’t it true, that immediately after “United States” won its independence from The Crown (via a ratified Articles of Confederation in 1781 and/or a ratified U.S. Constitution in 1789), all white male propertied Protestant males were automatically granted “naturalization” from foreign (British, French et al) subjects to “United States citizens”, who then might be eligible to become a grandfathered non-natural-born “auto-naturalized” President?

    Martin Van Buren, 8th U.S. President, became the first “natural born Citizen”-President since he was born in New York in 1782, one year after ratification of the Articles of Confederation. His father was an “auto-naturalized” U.S. Citizen due to being a U.S. resident and a former non-Loyalist rebel-patriot during the American Revolution. His mother’s citizenship was the “auto-possessed” “auto-naturalized” U.S. citizenship of her husband, correct? https://www.scribd.com/doc/48856102/All-U-S-Presidents-Eligibility-Grandfather-Clause-Natural-Born-Citizen-Clause-or-Seated-by-Fraud

    The U.S. Constitution and its 27 Amendments is the only supreme law of the United States (not the koran, Communist manifesto, Mein Kampf et al)

    All U.S. citizens, including U.S. Government citizen-employees, can either follow the U.S. Constitution or amend it. When Nancy Pelosi willfully violates the U.S. Constitution, she makes herself a criminal, does she not?

    When “natural born Citizen” was ratified in 1789, it neither defined, nor specifically allowed, any other possible undoubtable presidential parental citizenship than “auto-naturalized” or natural born U.S. Citizen-residents. In other words, where did the U.S. Constitution and its 27 Amendments ever state that both parents of any Constitutional presidential candidate can be anything other than U.S. Citizens at time of any presidential candidate’s birth in USA?

    We must support President Trump as he singlehandedly attempts to RENOVATE and CONSTITUTIONALIZE today’s mutinous criminal enterprise called “U.S. Government” led by Treason Queen Pelosi!

  6. See my recent letter to the Chief Justice of the U.S. Supreme Court. At this time the sole incorporated (albeit unorganized) territory of the U.S. is Palmyra Atol under control of the President and under judicial control of the U.S. District Court in Honolulu. Those born in unincorporated territories are not born on U.S. soil for purposes of being a “Natural Born Citizen”., “one born in the U.S. to parents who are both U.S. citizens themselves.

  7. Nationals are not eligible – period. It’s not rocket science to read and under our Constitution! If there is any question whatsoever about a person’s constitutional eligibility to run for the presidency as a natural born citizen, they should most certainly be prevented from doing so until the “question” is resolved, constitutionally. Even SCOTUS had’t been doing such a good job of interpreting our Constitution. But an honest (although hard to find) constitutionalist can make a case for or against a SCOTUS ruling, it should be weighed. This most important issue has for all intents and purposes already been decided. We just have to get around the sudden reinterpretations that fly around every time a non-eligible seeks the White House. PS: A strict literal reading of the Constitution, together will all the amendments and Federalist papers that support it, actually bans muslims from running for any political office by nature of not qualifying even for entry into the US, according to the conditions they must meet, as stated by our Founders. That too is clear, not rocket science. Liberals are having a field day twisting this precious parchment document to suit their global, anti-American sovereignty agenda.

  8. Seems to me that – with all of the statutes that the author has referenced, that the subject of this article would unequivocally be categorized as a STATUTORY U.S. citizen and not a natural born Citizen, simply by knowing that a natural born Citizen is born IN the country to two (2) U.S. citizen parents. If that isn’t proof enough, one only needs to simply compare key sentences found in the Naturalization Acts (more statutes people) of 1790 and 1795 as follows:

    As cited from the repealed Naturalization Act (1790): “And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: ……”.

    The first Naturalization Act (1790) was effectively nullified by the following corrective text found in the follow-on Naturalization Act (1795) that repealed the 1790 Act. The Naturalization Act (1795) now stated: [Excerpt] “…… and the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States:….” Naturalization Act (1795) further stated: [Excerpt] “SEC. 4. And be it further enacted, That the Act intituled, “An act to establish an uniform rule of naturalization,” passed the twenty-sixth day of March, one thousand seven hundred and ninety, be, and the same is hereby repealed.”

    Summary: If people are already established U.S. citizens (by any means) and are residing in American Samoa for any reason, their children are automatically STATUTORY U.S. citizens, but the offspring of nationals of Samoa are not awarded U.S. citizenship. Ref.: http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1401&num=0&edition=prelim

    Tulsi Gabbard should be a STATUTORY U.S. citizen (at birth) according to sub-paragraph (c), below.

    §1401. Nationals and citizens of United States at birth
    The following shall be nationals and citizens of the United States at birth:
    (a) a person born in the United States, and subject to the jurisdiction thereof;
    (b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;
    (c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;