by Sharon Rondeau
(Nov. 2, 2020) — An attorney representing Democratic vice-presidential candidate Kamala Harris in a lawsuit filed by New York State citizen Robert Laity claimed in a recent filing that Harris is both a “citizen of the United States” and a “natural born Citizen,” as is constitutionally required for the presidency and vice-presidency.
The suit, filed in early September, plaintiff Laity claimed that Harris does not meet the constitutional requirements of the presidency and vice-presidency given that her parents were not U.S. citizens when she was born in Oakland, CA on October 20, 1964. Then both attending the University of California, Berkeley on student visas, Harris’s mother was a citizen of India and her father a citizen of Jamaica.
The term “natural born Citizen” appears once in our founding documents: Article II, Section 1, clause 5 of the U.S. Constitution, and is not defined. A reference to the term appears in a July 25, 1787 letter from future governor of New York and U.S. Supreme Court Chief Justice John Jay to George Washington, who was chairing the constitutional convention which would replace the Articles of Confederation with the U.S. Constitution and the Bill of Rights.
“Permit me to hint,” Jay wrote to Washington, “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 devolved on, any but a natural born Citizen.”
Article II, Section 1, clause 5 of the Constitution states:
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.
A modern interpretation of the founders’ intent is that anyone born in the United States is a “natural born Citizen,” as opposed to an immigrant who naturalizes to join the American community of citizens. A more historical approach is that a person’s birthplace alone does not determine his or her citizenship or whether or not he or she is “natural born” and eligible to the presidency. Germane to that argument is the citizenship of the parents at the time of the child’s birth.
While the vice-presidential office is not mentioned in the Constitution, the 12th Amendment, ratified in 1804, mandates that all vice-presidential candidates meet the qualifications of the presidency.
Representing Harris in the suit is Benjamin J. Razi of Covington & Burling, who serves as co-chair of its Commercial Litigation Practice Group. In his “Defendant’s Memorandum of Law in Support of Motion to Dismiss,” Razi argued that Laity does not possess “standing” to bring the suit; that it is “frivolous” and “misguided”; and that Laity will not suffer “particularized” harm if Harris were to be elected vice president.
The case was assigned to U.S. District Court Judge Emmet G. Sullivan. Covington & Burling is the firm which initially represented Lt. Gen. Michael T. Flynn (Ret), President Trump’s first national-security adviser, in a criminal case and which Flynn dismissed last year, later hiring new counsel. Sullivan, who also presides over the Flynn case, objected to the Justice Department’s Motion to Dismiss and obtained an appellate-court ruling allowing him to hold further hearings.
Beyond those objections, Razi wrote, Laity’s claims are “based on a misunderstanding of the requirements for holding that office.”
On page 2 he contended that the 14th Amendment renders Harris a “natural born Citizen.”
Absent certain exceptions that do not apply to Senator Harris, the Fourteenth Amendment makes persons born in the United States—like Senator Harris— a “natural born citizen,” regardless of the citizenship of the person’s parents. The Supreme Court decided this question more than 100 years ago; it is not a subject of legitimate debate. Laity’s Complaint thus fails to state a claim on which relief could be granted.
The 14th Amendment, ratified in 1868 during the Reconstruction period, granted citizenship to former slaves born in the United States but did not touch upon the term “natural born Citizen.” “Section 1,” dealing with citizenship, reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Similarly, Razi stated, Harris is a U.S. “citizen” as a result of the 1898 case, United States v. Wong Kim Ark in which the U.S. Supreme Court ruled that Wong Kim Ark, born in San Francisco to citizens of China “legally domiciled” in the United States at the time of his birth, was a U.S. citizen, a term Razi referred to in his brief as “birthright citizenship” (p. 6).
When Ark was in his early 20s, his parents returned to China permanently, giving rise indirectly to the case after Ark was arrested upon his re-entry to the U.S.
Laity and a number of constitutional scholars and attorneys have argued that a higher standard of citizenship and allegiance were the Framers’ intent when they stipulated that only a “natural born Citizen” could serve as president. On October 22, in response to a letter Pennsylvania Sen. Pat Toomey sent to a constituent claiming Harris’s eligibility under the 14th Amendment, The Post & Email’s Joseph DeMaio wrote:
…There are two – and only two – ways of becoming an American citizen: (1) birth, subject to certain qualifications, on U.S. soil; or (2) naturalization. There is one – and only one – way of becoming an American “natural born Citizen”: birth on U.S. soil to a mother and father who are, at the time of the birth, already either native-born (which includes those who are also natural-born) or naturalized U.S. citizens, as originally intended by the Founders. It is that simple.
Accordingly, as such, the 14th Amendment is a “naturalization” law and not one bestowing “natural born citizen” status upon anyone. In Schneider v. Rusk, 377 U.S. 163 (1964), the Supreme Court, with Justice Douglas opining for the majority, held, 377 U.S. at 165: “We start 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, s [§] 1[, Cl. 5].” (Emphasis added). Naturalized persons are ineligible to either the presidency or the vice-presidency, which is why Arnold Schwarzenegger will never command the Oval Office.
In an editorial highly criticized after its publication by Newsweek in August, Chapman University Professor of Law John Eastman not only questioned Harris’s eligibility to the vice presidency, but also her basic citizenship given that at the time of her birth, her parents may not have been subject to the “complete jurisdiction of the United States.” Additionally referencing Wong Kim Ark, Eastman wrote:
The language of Article II is that one must be a natural-born citizen. The original Constitution did not define citizenship, but the 14th Amendment does—and it provides that “all persons born…in the United States, and subject to the jurisdiction thereof, are citizens.” Those who claim that birth alone is sufficient overlook the second phrase. The person must also be “subject to the jurisdiction” of the United States, and that meant subject to the complete jurisdiction, not merely a partial jurisdiction such as that which applies to anyone temporarily sojourning in the United States (whether lawfully or unlawfully). Such was the view of those who authored the 14th Amendment’s Citizenship Clause; of the Supreme Court of the United States in the 1872 Slaughter-House Cases and the 1884 case of Elk v. Wilkins; of Thomas Cooley, the leading constitutional treatise writer of the day; and of the State Department, which, in the 1880s, issued directives to U.S. embassies to that effect.
The Supreme Court’s subsequent decision in Wong Kim Ark is not to the contrary. At issue there was a child born to Chinese immigrants who had become lawful, permanent residents in the United States—”domiciled” was the legally significant word used by the Court. But that was the extent of the Court’s holding (as opposed to broader language that was dicta, and therefore not binding). Indeed, the Supreme Court has never held that anyone born on U.S. soil, no matter the circumstances of the parents, is automatically a U.S. citizen.
Razi claimed that the case of Minor v. Happersett, in which the U.S. Supreme Court “stated in dictum that it was unsettled whether the U.S.-born children of foreign parents are natural born citizens…definitively answered that question in Wong Kim Ark;…”
On page 8, Razi claimed that “Because Laity’s Complaint acknowledges that Senator Harris was born in the United States (of parents who were neither foreign diplomats nor enemy soldiers), and because that is all that is required to be a ‘natural born citizen,’ Laity’s Complaint fails to state a claim on which relief can be granted and should be dismissed.” He further urged Sullivan to dismiss the case “with prejudice,” providing a proposed order for the judge to sign if he finds in favor of the defendant.
In response to Razi’s brief, Laity filed a “Motion in Opposition to Motion to Dismiss” in which he stated, in part:
Our highest offices, the Presidency and the Vice-Presidency are being and have been usurped by ineligible constitutionally barred individuals to my detriment and the nations. The terms of art “Citizen” and “Natural Born Citizen” appear in the Constitution, inter alia. They are not tantamount. As the defendant properly asserts I have conceded that the defendant is a citizen of the U.S.but she is NOT a “Natural Born Citizen” (one born in the U.S. to parents who are both U.S. -9-citizens themselves). She is a 14thAmendment citizen and not an Article II Natural Born Citizen. She is therefor barred constitutionally from being President or Vice-President… The cases that the defendant cites have referred to being a “citizen” of the U.S. and does not support a determination by this court that the defendant is a Natural Born Citizen. I have shown by this submission that even in light of no less then (6) previous U.S. Supreme Court opinions supporting the plaintiff’s stance that there is sufficient cause of action NOT to dismiss this case.”