Tulsi Gabbard “natural born citizen” POTUS eligible – Here’s why!
U.S. military veteran, Member of Congress from Hawaii, presidential candiate,Tulsi Gabbard, was born in the tiny overseas island territory of American Samoa. Americans born in that territory have U.S. nationality but not citizenship. The local government and people so far have not petitioned Congress for U.S. citizen status. But those born there to a U.S. citizen parent acquire parental citizenship at birth. That means Tulsi Gabbard is a “natural born citizen” just as eligible to be President as every American President born after the U.S. Constitution was adopted in 1789.
By Howard Hills
Don’t ask courts to answer political questions
Puerto Rico is one of four U.S. territories where Congress has granted U.S. citizenship at birth, qualifying our fellow Americans in those territories as “natural born citizens” eligible to serve as President.
American Samoa is a special case, and so is Tulsi Gabbard! She acquired citizenship at birth not due to place of birth but U.S. citizenship of a parent.
One may support Gabbard’s ambitious White House bid or not. The question addressed here is whether citizens who are in many cases denied equal civil rights under territorial status also should be denied one of the rights secured under the Constitution for all who acquire citizenship at birth.
In Gabbard’s case that includes eligibility to serve as President. Yet, opportunistic journalists once again are relying on self-promoting legal scholars craving media attention to shamelessly hype “birther” nonsense about any presidential candidate not born in a state of the union.
There seems, however, to be no legal basis for claims Americans born outside the fifty states to U.S. citizen parents can’t serve as President. Accordingly, Gabbard’s candidacy does not as some so-called “experts” assert present an “unsettled constitutional question” that can only be decided by the U.S. Supreme Court.
When all else fails, instead of obsessing over fabricated “birther” hysteria, voters should empower themselves by actually studying their Constitution.
Understanding constitutional and statutory birthright citizenship
Not every provision of the U.S. Constitution needs to interpreted by a U.S. Supreme Court ruling to know what it means. If the court does rule on the meaning of constitutional text that becomes law, but the nation need not dither ambivalently over constitutional mandates until the court intervenes.
If otherwise resolved to act according to a clear idea about what text means, the Congress, President, states and people should use tools the Constitution gives us to carry on the work of making the union more perfect.
That is true with regard to the “natural born citizen” criterion in the Presidential Qualification Clause in Article II, Section 1 of the Constitution. The idea this applies exclusively to persons born in a state of the union is historically and constitutionally far-fetched.
That’s because the phrase “natural born citizen” does not refer to place of birth. Rather it refers to acquisition of citizenship under U.S. law applicable to the totality of circumstances under which a person is born.
When the Constitution was adopted, that left it to Congress to define by federal statute the criteria for acquisition of national citizenship at birth. The range of relevant criteria included place of birth, citizenship of parents, state citizenship, or other circumstances at the time of birth.
Those born and acquiring citizenship in a foreign country or who otherwise did not acquire U.S. citizenship at the time of birth under U.S. law also could acquire U.S. citizenship as permitted by Congress under immigration and nationality statutes enacted pursuant to the Uniform Naturalization Clause in Article I, Section 8 of the Constitution.
The exclusive power of Congress over national citizenship ended after the American Civil War in 1868 when the 14th Amendment was ratified and adopted under Article V of the Constitution. Our country then had a constitutionally defined national citizenship at birth, generally although like the Bill of Rights not absolutely beyond the reach of Congress to regulate, as long as the right is not impermissibly infringed upon.
Section 1 of the 14th Amendment includes the National and State Citizenship Clause conferring the right to our nation’s citizenship at birth on persons born in a state of the union, as well as equal rights of state citizenship in any state of the union in a citizen chooses to maintain legal residence.
However, the constitutional guarantee of national and state citizenship under the 14th Amendment did not extinguish the power of Congress under the Uniform Naturalization Clause to confer U.S. citizenship for persons who do not acquire it by birth in a state.
Congressional measures allowing statutory birthright citizenship outside the states evolved over time, and now includes citizenship at birth under federal nationality statutes for children born outside a state of the union to a U.S. citizen parent.
In addition to birth overseas to a U.S. citizen parent, federal law conferring birthright citizenship outside the fifty states also includes citizenship at birth in most but to all U.S. territories, as may be provided by Congress under federal territorial statutes.
Of course, the 14th Amendment also confers national and state citizenship on non-citizens who are “naturalized” in a state of the union under federal immigration and nationality statutes enacted by Congress under the Uniform Naturalization Clause in Article I, Section 8. But this is not citizenship at birth, so it does not constitute natural born citizenship or satisfy the criteria for eligibility to serve as President.
Citizenship at birth is natural born citizenship
In order to be elected and serve as President, U.S. citizenship must have been acquired when born as a result of –
Birth in a state under the National and State Citizenship Clause of the 14th Amendment
National citizenship acquired by statute at birth overseas to a U.S. parent
National citizenship based on birth in a U.S. territory under federal territorial statutes
In all three cases birthright citizenship under federal law means you are qualified consistent with the “natural born citizen” criteria and eligible to be President of the United States.
You can count on that, unless and until five judges on the U.S. Supreme Court rule otherwise. That means the high court would have to rule U.S. citizenship at birth under U.S. law that qualified a succession of Presidents before 1868 somehow no longer constitutes “natural born citizenship” after all.
That would mean only 14th Amendment citizenship based on birth in a state would satisfy the Presidential Eligibility Clause in Article II, Section 1 of the Constitution. Children born to U.S. citizen parents over seas could never be President.
If that were the case then 1964 Republican nominee Senator Barry Goldwater, born to U.S. citizens in the territory of Arizona, was not eligible. Nor was 2008 Republican nominee Senator John McCain, born to parents on military deployment in the Panama Canal Zone.
Same for Mexican born 1968 GOP presidential candidate George Romney, father of 2012 candidate Mitt Romney, as well as 2012 short list candidate for the Vice President slot on the ticket, Puerto Rico Governor Luis Fortuno. Unlike Gabbard who lives in Hawaii and can vote for herself, as a resident of a territory Luis Fortuno could be elected and serve as President but could not vote for himself.
Tulsi eligible as any past candidate, nominee, President
Gabbard became a U.S. citizen at birth in the U.S. territory of America Samoa to U.S. citizens parents. The fact that Congress has not yet conferred U.S. citizenship at birth in American Samoa is irrelevant.
That is because her U.S. citizenship was derived at birth under federal law not from the place where she was born but from parental U.S. citizenship status. Only birthright citizenship under the 14th Amendment is based exclusively on place of birth (i.e. in a state).
Citizenship at birth under federal statute can be on other criteria, including U.S. citizenship of a parent and/or place of birth being U.S. territory not within a states. The term “natural born citizen” can be thought of as being “naturalized” by the constitution or by statute at birth.
Barrack Obama was eligible to be President based on his mother’s citizenship, even if it had turned out he was born in Kenya or anywhere else outside the USA. If anyone had ever actually tampered with his birth certificate because they thought it was a problem if he was born overseas, they were acting based on bad legal advice!
Ironically, as a matter of record Obama was born in Hawaii less than two years after its U.S. territory status ended and it became the 50th state in 1959. So as a matter of record he acquired birthright citizenship under the 14th Amendment.
Had Hawaii still been a territory instead, he would have been eligible to be President both because his citizenship was derived from his U.S. citizen mother and Congress had granted statutory birthright citizenship in the territory that was his birthplace.
Pandering to “birther” political illiteracy
On December 16, 2018, the Honolulu Star Advertiser ran an article alleging Gabbard’s “birthplace” created an “unsettled constitutional question” about her eligibility to serve as President.
On January 11, 2019 BuzzFeed News fed the bogus buzz about Gabbard’s so-called birthplace problem, asserting the birther syndrome “absolutely” would become a “political issue” if she becomes a “major candidate.”
The BuzzFeed News article strays off topic promoting discussion of a controversial solution where there is no problem. Specifically, the BuzzFeed News writer touts the arguments of those in American Samoa who so far have failed to convince their own territorial government it should ask Congress to confer statutory U.S citizenship at birth to American Samoa, as it already does in Puerto Rico, Guam, Mariana Islands and Virgin Islands.
Until now American Samoa prefers greater autonomy from Washington, and there is concern U.S. citizenship would bring federal political and legal intrusions and a larger footprint by Congress in the islands. The BuzzFeed article also gives a leg up to the small minority in American Samoa who have endorsed automatic citizenship at birth in the territory, including a few federal lawsuit litigants asking the federal courts to impose U.S. citizenship if Congress won’t.
American Samoans are U.S. “nationals but not citizens,” and can apply and receive U.S. citizenship with fully equal rights upon establishing residence in any state. So far federal courts have rejected lawsuits by a few American Samoans seeking application of the 14th Amendment to all U.S. territories. That would mean permanent supremacy of U.S. sovereignty a law, extinguish the right of self-determination on other status options, without a promise or commitment to future statehood or even integration into an existing state.
This call for a change of status by judicial edict strikes people who actually know the issues as odd, since Congress for decades gladly would grant birthright statutory citizenship if asked. In addition, even if U.S. citizenship was granted by Congress or the courts, like all citizens in all territories the people of American Samoa would still be denied equal voting rights for representation in Congress and the Electoral College when back home note territory.
That’s because the rights of democratically elected representation at the federal level are allocated only to U.S. citizens residing and eligible to vote in a state under Article I, Section 2 and Article II, Section 1 of the Constitution.
Finally, BuzzFeed News implausibly compares Gabbard’s status to that of Republican SailauTimoteo, who was disqualified from being a candidate running for Hawaii State Legislature because she is an American Samoan born U.S. national but not citizen. Hawaii state law requires U.S. citizenship to serve in the Legislature, and all Timoteo had to do was apply for U.S. citizenship and she would have been eligible for state office.
Timoteo insists she is in the same status as Gabbard because they had the same birthplace. It seems state candidate Timoteo does not understand that Gabbard’s citizenship is not based on birthplace but citizenship of at least one parent, whereas both of Timeteo’s parents are non-citizen nationals.
That is why Americans born outside states should not rely on journalists or underemployed law professors exploiting “birther” mania for legal advice on eligibility to be elected to state or federal office.
Howard Hills is a former U.S. Navy JAG counsel on territorial law for President Reagan, serving in the Executive Office of the President, National Security Council and U.S. Department of State. He is author of Citizens Without A State, with foreword by former U.S. Attorney Richard Thornburgh