President-Elect Obama, Dual Citizenship and the Constitution

Immigration and nationality law continues to pose challenges to President-elect Barack Obama, but not merely as a matter of public policy.  Rather, his right to take the office has been under attack.  This month, the Supreme Court rejected without comment two applications for emergency stay of the 2008 Electoral College meeting.  Those seeking the stay claimed President-elect Obama was ineligible to take office on January 20, 2009, as a “natural born Citizen” under Article II of the U.S. Constitution, which provides that “No person except a natural born Citizen … shall be eligible to the office of President.”  While it seems unlikely at this stage that either Mr. Obama’s ostensible dual citizenship at birth or claims of his Indonesian citizenship will prevent him from becoming our 44th President, the arguments presented in these appeals raise questions about dual citizenship and loss of U.S. citizenship and thereby offer an opportunity to review these aspects of U.S. nationality law. 

In one case declined by the Supreme Court, retired New Jersey attorney Leo C. Donofrio claimed that Mr. Obama’s alleged dual U.K. and U.S. citizenship at birth would preclude him from office.  (Mr. Donofrio had also argued that Senator John McCain’s birth in the Panama Canal Zone meant he was not a “natural born Citizen,” the topic of this column in August,  and that Nicaragua-born Socialist Workers candidate Roger Calero was also ineligible.)  In the other rejected case, Pennsylvania’s former deputy attorney general Philip J. Berg (and also supporter of Sen. Hillary Rodham Clinton) made a variety of allegations and arguments, including that Mr. Obama may have been born in Kenya (and not Hawaii) and that in any case he acquired Indonesian citizenship as a child and thereby lost U.S. citizenship.  A challenge by Cort Wrotnowski of Connecticut, with whom Mr. Donofrio has collaborated,  remains to be heard by the Supreme Court, although it too will presumably be rejected by the Supreme Court.  As shown below, the legal arguments made in these cases do not comport with established principles of U.S. citizenship law (or are, in the case of Mr. Berg’s allegation of Mr. Obama’s birth in Kenya, based on a factual allegation that has been refuted).

The facts of Mr. McCain’s birth to U.S. parents in the Panama Canal Zone – and his U.S. citizenship by birth as a result of a subsequent statutory grant – are undisputed.  His eligibility for the Presidency as a “natural born citizen” was disputed solely on the legal issue of whether birth outside of the United States to U.S. parents made him a “natural born citizen” or not.  Not so in the case of Mr. Obama, whose eligibility is being challenged, at least in part, on allegations of facts not generally accepted and in some cases dismissed by most as just bizarre – for example, that Mr. Obama was born in Kenya rather than in Hawaii.  In two of the cases, the plaintiffs contend that Mr. Obama’s birth to a foreign-born father, resulting in dual citizenship at birth, automatically creates divided loyalties and precludes him from being a “natural born Citizen” eligible to serve as President.  In the third case, various facts are posited, including Mr. Obama’s birth in Kenya, adoption or acknowledgment as a child by his stepfather in Indonesia, and his travel as a young adult on an Indonesian passport to Pakistan.  Legal conclusions are drawn that Mr. Obama either failed to acquire U.S. citizenship at birth or lost U.S. citizenship at some point after birth because of his acquisition of Indonesian citizenship.  The challengers then proceed to argue that dual citizenship at birth, loss of U.S. citizenship after birth, or birth outside of the United States would preclude Mr. Obama from being a “natural born citizen.”

Messrs. Donofrio and Wrotnowski posit the following facts about Mr. Obama’s birth to establish his dual citizenship:  that his father, Barack Obama Sr., was born in Kenya, which at the time of Mr. Obama Jr.’s birth in 1961 was a British colony; that Mr. Obama Sr. was at that time a British subject and that British nationality law governed not only the nationality of Mr. Obama Sr. but also Mr. Obama Jr., thereby resulting in British citizenship at birth for Mr. Obama Jr.  In support of this, Mr. Wrotnowski’s lawsuit refers to one of President-elect Obama’s websites, Fightthesmears.com, which cites FactCheck.org, a nonpartisan, nonprofit “consumer advocate” for voters associated with the Annenberg Public Policy Center of the University of Pennsylvania, stating:

“When Barack Obama Jr. was born on Aug. 4, 1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.’s children.  Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4, 1982.” 

In other words, by citing third-party websites, President-elect Obama may appear to concede that he had dual U.K./U.S. citizenship until Kenyan independence on December 12, 1963, and thereafter Kenyan/U.S. dual citizenship, until his twenty-first birthday.

The facts alleged by Mr. Berg are more controversial.  In addition to claiming that President-elect Obama was born in Kenya (and that his U.S. citizen mother hadn’t resided in the United States long enough to transmit U.S. citizenship to him at birth), he also alleges that Mr. Obama’s mother became a naturalized Indonesian citizen after she married a citizen of Indonesia, Lolo Soetoro, and relocated to Indonesia with him, thereby losing her U.S. citizenship.  Mr. Berg concludes that Mr. Obama also became a citizen of Indonesia and, to the extent he was a U.S. citizen, lost that citizenship as a child, giving various theories for that conclusion, including that the citizenship of minor children is determined by that of the custodial parent and that Mr. Soetoro acknowledged his stepson under Indonesian law or even formally adopted him.  Mr. Berg further posits that Mr. Obama traveled to Pakistan as a young adult on an Indonesian passport, a further act of expatriation on Mr. Obama’s part.

Putting aside questions of U.K., Kenyan and Indonesian law, as well as questions of fact, the legal arguments presented in these challenges raise questions of U.S. citizenship law, particularly with regard to dual or multiple citizenship and the grounds for expatriation or loss of U.S. citizenship.  This provides occasion to review these aspects of U.S. citizenship law. 

Dual Citizenship

The thrust of Mr. Donofrio’s (and Mr. Wrotnowski’s) arguments is that a child of a non-US citizen, facing competing loyalties by reason of dual citizenship, cannot be eligible to serve as President: in drafting the Constitution, “the Framers sought to exclude dual national Citizens from holding the office of President since having dual nationalities, at birth, would help create the conditions whereby a future President might take the office with a competing loyalty to another nation.” 

There is of course no per se rule that dual citizenship is a bar to being a “natural born Citizen,” and the only thing clear about the Constitutional notion of “natural born” citizenship is that it precludes from eligibility for the Presidency naturalized citizens, i.e., those who acquire U.S. citizenship after birth.  While competing loyalties have long been mentioned in policy and legal arguments against dual citizenship,  such arguments would apply with at least equal force if not more forcefully to a Presidential candidate born to U.S. parents on U.S. soil who acquired dual citizenship as an adult, i.e., after birth. 

Historically, the United States like virtually all other countries has frowned upon dual citizenship.  However, citizenship is essentially a function of national laws, not international ones,  and each country determines who may be one of its citizens.  Conflicts of these laws have therefore always resulted in cases of dual citizenship, and the U.S. Government has recognized dual citizenship (at least in certain circumstances, typically for minor children) since at least 1875.  In its 1898 decision, United States v. Wong Kim Ark, the Supreme Court found that a child born on U.S. soil to Chinese parents ineligible of acquiring U.S. citizenship was nonetheless a U.S. citizen at birth by reason of the Fourteenth Amendment:  “To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.”

As discussed in this column in August, most countries recognize two basic ways to acquire citizenship, at birth or after birth through naturalization.  Birthright citizenship itself follows one of two principles or a combination of the two:  jus soli (citizenship determined by place of birth) and jus sanguinis (citizenship by descent).  The United States has both – everyone born in the United States (except for children of foreign diplomats) is a U.S. citizen, and U.S. citizens transmit to their children born abroad U.S. citizenship as long as certain conditions are met. Given this patchwork of national laws, dual (or multiple) citizenship generally arises in one of three situations:

1. Birth in a jus soli jurisdiction to parents who are citizens of a jus sanguinis jurisdiction (for example, a child born on U.S. soil to Japanese parents).

2. Birth to two parents of different nationality who are citizens of jus sanguinis jurisdictions (for example, a child born to an Israeli father and a U.S. mother).

3. Naturalization by a citizen of a country that does not recognize naturalization as an expatriating act or imposes legal requirements in order for the naturalization to result in loss of citizenship (for example, a national of Iran who has naturalized in the United States but would still be considered an Iranian citizen with continued obligations such as military service, unless legal procedures are observed to obtain permission from the Iranian government, or a U.S. national who obtains, say, Italian citizenship, but without the requisite intent of abandoning U.S. citizenship).

In light of a series of Supreme Court decisions in the 1950s and 1960s striking down statutes that provided for automatic expatriation (loss of nationality), discussed below, and the liberalization of other countries’ laws regarding dual citizenship, dual citizenship has become a more common phenomenon, one that as a practical and legal matter has now become accepted by the United States. 

Messrs. Donofrio and Wrotnowski don’t address the question at all of dual citizenship obtained as an adult.  Dual citizenship at birth is no more problematic than dual citizenship obtained as an adult, and there is no evidence that the Framers of the Constitution contemplated dual citizenship at all.  Subsequent legal developments have led to an acceptance of dual citizenship in the United States.  In light of this, attempting to preclude dual citizens from the Presidency based on Article II of the Constitution appears to be conceptually flawed.

Loss of U.S. Citizenship

Mr. Berg raises questions regarding the acquisition and loss of U.S. citizenship rather than the impact of dual citizenship on the Constitutional issue of “natural born” citizenship.  (The question of acquisition of citizenship if Mr. Obama had in fact been born abroad, as Mr. Berg claims, is discussed below.)

The seminal case on expatriation is Afroyim v. Rusk,  a 1967 Supreme Court decision striking down a statute expatriating a citizen who had voted in a foreign election and declaring that U.S. citizenship could not be lost unless the citizen voluntarily relinquished it.  Since Afroyim, a number of other Supreme Court decisions, statutory amendments and administrative interpretations have cemented the principle that U.S. citizenship can be lost only through voluntarily committing one of the acts enumerated in the statute, INA § 349(a), “with the intention of relinquishing United States nationality.”  Those acts include:  naturalizing in a foreign state after age 18; taking an oath of allegiance to a foreign state after age 18; serving in the armed forces of a foreign state engaged in hostilities against the United States or serving as an officer in the armed forces of a foreign state; accepting, after age 18, a government post or political appointment in a foreign state of which the person is or becomes a national or for which an oath of allegiance is required; formally renouncing U.S. citizenship before a U.S. diplomatic or consular officer outside of the United States, or, if in a state of war, before a designated official in the United States; or committing an act of treason.  Even if a U.S. citizen commits any of these acts, so long as they are not done with the intention of losing U.S. citizenship, the person remains a U.S. citizen.

Mr. Obama and his mother left the United States for Indonesia sometime in or around 1967.  The statute in effect at that time did not force women to lose their U.S. citizenship merely by reason of marriage.  There had been a 1907 act that provided for loss of nationality if a U.S. woman married a foreign citizen, upheld as constitutional in 1915 by the Supreme Court, but that statute was repealed in 1922.  So Mr. Obama’s mother clearly did not lose U.S. citizenship for that reason, even if under Indonesian law she automatically acquired Indonesian citizenship.  There is no allegation or evidence that Mr. Obama’s mother went through a formal naturalization process to acquire Indonesian citizenship, which under the statute in effect at the time would have been an expatriating act.  Under Afroyim’s reasoning, however (and Afroyim addressed an expatriating act committed in 1951), his mother would have had to have intended to relinquish U.S. citizenship at the time (and there is no suggestion of that).  Moreover, there is no provision in U.S. law that the expatriation of a parent automatically results in the loss of U.S. citizenship of a minor child in that parent’s custody.  As to Mr. Obama’s travel to Pakistan as a young adult in 1981, the use of a non-U.S. passport was not an enumerated expatriating act in the statute at the time and, again, under Afroyim’s reasoning, he would have had to commit an expatriating act with the intention to relinquish U.S. citizenship at the time (and, as indicated above, Mr. Obama apparently denies ever having renounced his U.S. citizenship).

Birth Abroad to U.S. Citizen Parent

Mr. Berg also argues that, if Mr. Obama was born in Kenya, U.S. citizenship wasn’t transmitted to him because his mother, S. Ann Dunham, hadn’t resided in the United States long enough before his birth.  As discussed in this column in August, transmission of citizenship by descent has always been a function of statutes, and the statute in effect at the time of a person’s birth is controlling.  The statute in effect in 1961 required, before the birth of the child, the physical presence of the U.S. citizen parent in the United States for ten years, at least five of which were after the parent attained the age of 14.  This statutory provision had the effect of preventing anyone under the age of 19 from transmitting U.S. citizenship at birth to a child born outside of the United States.  (The current version of this law, INA § 301(g), 8 USC § 1401(g), requires a period of only five years of physical presence in the United States, at least two of which were after attaining the age of fourteen.)  As Mr. Obama’s mother was only eighteen at the time of his birth, she would not have been able to transmit U.S. citizenship to him if she had been in Kenya (or anywhere else outside of the United States) at the time of his birth.

Conclusion

The election of Mr. Obama to the Presidency constitutes a number of “firsts” in U.S. history.  From the perspective of the immigration and nationality law, he may well be the first President to acknowledge having had dual citizenship.  This is consistent with the trend toward greater acceptance of dual citizenship in the United States, a trend that despite the concerns about “divided loyalty” will most likely continue.

[1]  U.S. Const. art. II, § 1, cl. 5.
 
[2]  Copy of the application for emergency stay by Mr. Donofrio is available at http://thenaturalborncitizen.blogspot.com/2008/11/donofrio-and-wrotnowski-stay.html (last accessed on December 12, 2008).

[3]  Chiappari & Paparelli, Natural-Born Citizenship – McCain OK for Presidency?, New York Law Journal, Aug. 22, 2008, p. 3.

[4]  The court documents he has filed, with factual allegations and legal arguments relevant to Mr. Obama’s citizenship status, are available at http://www.obamacrimes.com/ (last accessed on December 12, 2008).

[5]  Also available at available at http://thenaturalborncitizen.blogspot.com/2008/11/donofrio-and-wrotnowski-stay.html (last accessed on December 12, 2008).

[6]  http://fightthesmears.com/articles/5/birthcertificate.  See also http://www.factcheck.org/askfactcheck/does_barack_obama_have_kenyan_citizenship.html.

[7]  Wrotnowski v. Bysiewicz Application for Emergency Stay and/or Injunction as to the 2008 Electoral College Meeting and Alternatively as to Connecticut Electors, p. 32, available at http://thenaturalborncitizen.blogspot.com/2008/11/donofrio-and-wrotnowski-stay.html

[8]  See, e.g., Rogers v. Bellei, 401 U.S. 815, 832 (1971):  “The child [with dual citizenship] is reared, at best, in an atmosphere of divided loyalty….  The duality also creates problems for the governments involved.”

[9]  In United States v. Wong Kim Ark, 169 U.S. 649, 668 (1898), the Supreme Court recognized “the inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.”  For a general overview of the citizenship laws of each country, see United States Office of Personnel Management Investigations Service, Citizenship Laws of the World, March 2001, at http://www.opm.gov/EXTRA/INVESTIGATE/is-01.PDF (last accessed on December 15, 2008).

[10]  Steinkauler’s Case, 15 Op. Attys. Gen’l, 15 (1875), an advisory opinion by Attorney General Edwards Pierrepont to Secretary of State Hamilton Fish, discussed in Perkins v. Elg, 307 U.S. 325, 330-331 (1939).

[11]  169 U.S. 649, 694 (1898).

[12]  See Carnegie Endowment for International Peace, “Embracing Dual Nationality,” January 1, 1999, available at http://www.carnegieendowment.org/publications/index.cfm?fa=view&id=174&prog=zgp&zoom_highlight=dual+citizenship (last accessed on December 15, 2008).  For a general overview and critique of birthright citizenship, see Ayelet Shachar , “Children of a Lesser State:  Sustaining Global Inequality through Citizenship Laws,” NYU School of Law, Jean Monnet Working Paper, February 2003.

[13]  See U.S. State Department website at http://travel.state.gov/law/citizenship/citizenship_778.html (last accessed on December 15, 2008):  “While recognizing the existence of dual nationality and permitting Americans to have other nationalities, the U.S. Government also recognizes the problems which it may cause.” 

[14]  387 U.S. 253 (1967).

[15]  8 U.S.C. § 1481(a).

[16]  Gordon, Mailman & Yale-Loehr, 7 Immigration Law and Procedure § 100.02[2][a][iii], discussing the Expatriation Act of 1907, Act of March 2, 1907, 34 Stat. 1228, and Mackenzie v. Hare, 239 U.S. 2999 (1915).

[17]  See, e.g., Perkins v. Elg, 307 U.S. 325, 330-331 (1939), and its discussion of Steinkauler’s Case, 15 Op. Attys. Gen’l, 15 (1875); see also Gordon, Mailman & Yale-Loehr, 7 Immigration Law and Procedure § 100.02[3][c]:  “[E]xpatriation cannot be accomplished by a citizen who has not attained a specified age of maturity.”

[18]  Gordon, Mailman & Yale-Loehr, 7 Immigration Law and Procedure § 93.02[5][c][iii], describing the 1952 Immigration and Nationality Act in effect until 1986.

Reprinted with permission from the New York Law Journal. © ALM Properties Inc. All rights reserved. Further duplication without permission is prohibited.  The authors thank the Journal for permission to reprint this article.

Ted J. Chiappari is a partner at Satterlee Stephens Burke & Burke LLP in New York City.  Angelo A. Paparelli is a partner in Seyfarth Shaw LLP in New York and Los Angeles.

 


By Ted J. Chiappari and Angelo Paparelli and