A Small Fly in the nbC Ointment…

by Joseph DeMaio, ©2024 

(Dec. 31, 2024) — When people identify a minor problem within an otherwise acceptable situation, they sometimes say, “There’s a fly in the ointment.”  A succinct definition of the phrase and its meaning is found in the Cambridge Online Dictionary, defining it thusly: “a single thing or person that is spoiling a situation that could have been very positive or enjoyable.”

As brief backdrop, and as faithful P&E readers know, your humble servant has for years pontificated here at The P&E on the “natural born Citizen” (“nbC”) presidential eligibility issue under Art 2, § 1, Cl. 5 of the Constitution.  Your servant has posited and advocated that the Founders adopted the definition set out by Swiss attorney, judge and legal scholar Emer de Vattel in § 212 (hereinafter “§ 212,”) from Book 1, Ch. 19 of his 1758 seminal treatise, Le Droit des Gens, or The Law of Nations.  In short, that definition – posed as being intentionally selected by Founder John Jay, then submitted to Constitutional Convention Chairman George Washington and thereafter adopted without dissent by the Founders – refers to a person born “in” (“dans,” in French) a country to “two parents,” (“parens citoyens,” in French) a mother and a father, who are already at the time of birth citizens of that country.  It is that simple.

In 1787, this definition would have provided the highest available barrier to the potential for the insinuation of “foreign influence” into the presidency and would have satisfied the Founders’ desire to preclude, not merely frustrate or impede the potentials for such insinuation.  The § 212 definition would thus have been a higher barrier to foreign influence and thus superior to the “citizen at/by birth, regardless of parental citizenship or country of birth” narrative marketed today by the Congressional Research Service and others.  It is plainly counterintuitive – and moreover highly likely false – that the Founders would consciously have preferred and selected the lower barrier over the higher barrier, yet that is the necessary conclusion burdening the non-§ 212 definition of an nbC.

But I digress.

In 2008, Senators John McCain and Barack Hussein Obama, II were running for the presidency.  McCain was selected as the GOP candidate to face Obama, but only after lingering questions about the “nbC” eligibility status of McCain, rather than Obama, were hurdled.  Obama’s bare claim that he was born in Honolulu, Hawai’i was accepted virtually without either competent evidentiary proof that he was an nbC or that he was actually even born in Honolulu.  The main nugget of anecdotal “proof” that he was born there was a birth announcement placed in a Honolulu newspaper, purportedly by his grandmother, rather than his father or mother.  No birth certificate – its authenticity aside – was presented at that time.  The election took place, and the rest, as they say, is history.

As for McCain, he was not born “in” the United States proper but instead was born in either (the record is still unclear) (a) the military hospital at the Coco Solo Naval Air Station in the Panama Canal Zone, or (b) in a civilian hospital in Colόn, Panama.  In an attempt to fortify his eligibility as an nbC, the U.S. Senate promulgated and enacted Senate Resolution 511 (“S.Res. 511”).  Your humble servant addressed and critiqued that resolution here.

Recently, however, your servant had occasion to revisit some additional history surrounding the resolution…, and that is when the “fly in the ointment” appeared.  As part of the events surrounding the passage of S.Res. 511, the then-Chairman of the Senate Judiciary Committee, Senator Patrick Leahy (D. VT), had asked for a legal opinion on the issue.  The request was not, interestingly enough, made to attorneys at the Congressional Research Service, but instead to former U.S. Department of Justice Solicitor General Ted Olson, who served in that capacity between 2001 and 2004 under President George W. Bush.  Regrettably, Ted Olson passed on to that great courtroom in the sky last month on November 13, 2024.

Back to text: on April 8, 2008, Ted Olson responded to Senator Leahy in a letter (concurred in, parenthetically, by Hah-vahd Law Professor Laurence Tribe) concluding, for a variety of reasons, that Senator McCain was, in fact, an nbC eligible to the presidency.  Note that Professor Tribe is the same “expert” who assured everyone that Donald Trump was guilty of “insurrection” under the 14^th Amendment and for that reason – and without a trial – would properly be excluded from state general election ballots in 2024. In Trump v. Anderson, the Supreme Court booted Tribe and his “constitutional expertise” to the sidelines, and as a result, we soon will see Donald Trump inaugurated as the 47^th President of the United States.

Tribe’s muddled thinking aside, and in observance of full disclosure, Mr. Olson’s opinion letter, again, concurred in by Tribe, concluded that Senator McCain was, in fact and law, an nbC eligible to the presidency.  That letter was entered into the Congressional Record on April 30, 2008, when the Senate formally resolved that Sen. McCain was an nbC. Without boring into the details of Mr. Olson’s analysis, suffice it to say that it arrives at the same conclusion as the CRS “products” and the 2015 Clement-Katyal Harvard Law Review Journal article, “On the Meaning of Natural Born Citizen,” i.e., that Senator McCain was a “citizen at birth” or “citizen by birth” to two American citizens, despite his birth beyond the soil of the United States.  Thus, concluded Mr. Olson, McCain was an nbC eligible to the presidency. 

Like the CRS products and the Clement-Katyal article as to Senator Ted Cruz, the Olson letter makes no mention of Emer de Vattel; nor does it address the “never as to the first” statements of the Supreme Court in Minor v. Happersett; nor does it address or explain the impact of Justice Gray’s patent blunder in the WKA case, erroneously claiming that the Congress reenacted “in the same words” the “natural born” modifier of “citizens” of 1 Stat. 103 (1790) when in fact and reality, it repealed, in its entirety, 1 Stat. 103 by enacting 1 Stat. 414 in 1795, discussed here.

Most significantly, the Olson analysis offers no rationale or explanation whatsoever for why, under the CRS “citizen at birth” or “citizen by birth” narrative, the Founders would have intentionally selected a definition of a nbC which presented a lower barrier to the insinuation of foreign influence into the presidency when a known higher barrier – the de Vattel § 212 definition, requiring birth on U.S. soil to two U.S. citizen parents – was available.  None.

That said, the Olson analysis does cite one Supreme Court case – a potential “small fly in the ointment” – not heretofore mentioned that may (good news/bad news) prove to be relevant should the Supreme Court ever determine to directly address the nbC issue: Walz v. Tax Commission of City of New York.

In that “non-nbC” case, one involving the tax-exempt status of churches, the Court addresses as a general legal proposition the issue of the weight (i.e., “how important is it?”) to be properly accorded to the historical record of events and practices as bearing upon the questions presented in a particular case or controversy.  The Court stated (397 U.S. at 678): “It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence, and indeed predates it. Yet an unbroken practice … is not something to be lightly cast aside.” (Emphasis added). 

This statement does not mean that the practice cannot be voided into the future, but only that the practice must be acknowledged and analyzed before, if otherwise necessary, it is cast aside.  And with the shady history of the CRS linguistic anomalies and mischaracterizations of dissenting opinions (e.g., the WKA dissent) seemingly calculated to mislead the Congress, the Court and the electorate as to the persons who the Founders intended to be recognized as nbC’s, the indifferent “practice” of the voters electing ineligible presidents and vice-presidents becomes one which intellectually begs to be “set aside.”

The materiality of the Court’s Walz statement insofar as the nbC issue is concerned lies in the fact that, on several prior occasions in the history of the Republic, persons who likely were not natural born Citizens were nonetheless either officially (but erroneously) recognized as being such and/or were actually elected to either the Presidency (Chester A. Arthur; Barack Hussein Obama, II) or the Vice-Presidency (Kamala Harris) despite unresolved questions regarding their respective nbC bona fides.  And this does not even touch the respective political parties’ practices of allowing persons of questionable nbC bona fides to compete as candidates in primary races.  Such persons would include, for example, Nikki Haley; Marco Rubio; Vivek Ramaswamy; and Tulsi Gabbard. 

Those historical facts – problematic and likely unconstitutional as they may have been – could well, under the “unbroken practice” statement from the Walz case, provide the Court with a convenient “out” or “escape route” for the Justices to continue “evading” the issue or even actually reaching a precedential decision validating and ratifying the “citizen at birth” or “citizen by birth” narrative that has been thus far successfully marketed by the CRS and others.  That same conceptual result might also be reached by a Justice (or Justices) under an “Opinion Relating to Order [of Certiorari Denial].”

To reiterate, your servant posits that while the Olson letter opining that John McCain was an nbC eligible to the presidency in support of S.Res. 511, not only is that opinion letter inconsistent with the historical intent of the Founders and the “judicial dictum” in the Minor case discussed here, it fails to explain or justify why the Founders would have adopted the “citizen at/by birth” nbC definition – with its lower “foreign influence” barrier – when the higher de Vattel § 212 barrier was available, as seemingly “hinted” by Founder John Jay in his famous letter to George Washington.

In conclusion, the Walz case may constitute a small fly in the nbC ointment, but unless and until the Supreme Court has before it an nbC case involving an actual occupant of the office of the president or vice-president, or a candidate aspiring to those offices, the “fly” may disappear and never become a problem.  And with the Court continuing to “evade” the issue, that may well end up being the fate of that insect.  

As Confucius is rumored to have said: “May you live in interesting times.”