Tssb Supplemental Brief 08 10817 Rightside

No.08 - 10817 ___________________

In The Supreme Court Of The United States ___________________ Steven Lee Craig— PETITIONER VS. The United States of America— RESPONDENT(S) ___________________ On Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit

___________________ MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF AND SUPPLEMENTAL BRIEF FOR PETITIONER

___________________ Petitioner Steven Lee Craig Pro Se In Forma Pauperis . . . [email protected] Responent Elena Kagan Solicitor General United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530-0001 [email protected]

1

MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF BEFORE JUDGEMENT

Pursuant to Rules 15.8 of the Rules of this Court, respondents respectfully seeks leave to file the attached supplemental brief.

Subsequent to filing original Complaint, April 22, 2009 and subsequent Petition for Writ of Certiorari on June 10th 2009, Petitioner has become aware of proposed Bills circulating in the Congress of the United States of America, H.R.1503, offered by Rep. Bill Posey, (FL-15), (introduced 3/12/09) which seeks to make mandatory ‘eligibility vetting’ of candidates for the Executive Offices of POTUS and VPOTUS beginning in the 2012 election cycle and H.R. 133 and H.R. 1490, both of which seeks to limit and/or deny ‘citizenship’ rights of certain alien individuals.

The obvious fatal flaw of the ‘exclusion and omission’ of a ‘legal definition of natural born citizen’ in the proposed Bill H.R. 1503 renders it ineffective and therefore reinforces the urgency and National interest concerns, (Rule 11 SCOTUS, 28&2101, 28&1254(1)(2)) of the subject of the Petitioners original and subsequent filings while the Bills H.R. 133 and

H.R. 1490 provide current understandings of the Legislators rights to define the circumstances of citizenship save for the circumstances and definition of the ‘Natural Right’ of citizenship of a ‘Natural Born Citizen’.

Petitioner respectfully request leave to file the attached supplemental brief addressing the continuing effect the lack of ‘legal definition of natural born citizen’ is having on the National administration, legislation, general citizenry and Petitioner as well as on the proper disposition of this case. Respectfully submitted,

____________________ Steven Lee Craig . . . . . [email protected]

ii TABLE OF CONTENTS MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF BEFORE JUDGEMENT...................………………........... i

TABLE OF AUTHORITIES AND APPENDIX OF ORIGINAL PETITION INCORPORATED HERETO...............……………….. iii SUPPLEMENTAL BRIEF FOR PETITIONER…………………..1-15 The Proposed Bills H.R. 1503, 133, 1490.....…......……………16-18 H.R 511 with ANALYSIS BY OLSEN / TRIBE……..……..….... 19-20 Fam 7 1131.6-2 WITH 1 Stat. at Large, 103………………….…21

SUPPLEMENTAL CONCLUSION...................…......……………. iiii

1

SUPPLEMENTAL BRIEF FOR PETITIONER Statement of Facts and Assertions Relevant to Issues Presented for Review. On or about March 12th, 2009 Representative Bill Posey (FL15) entered a Bill for congressional consideration designated as H.R. 1503 and Titled; “To amend the Federal Election Campaign Act of 1971 to require the principal campaign committee of a candidate for election to the office of President to include with the committee's statement of organization a copy of the candidate's birth certificate, together with such other documentation as may be necessary to establish that the candidate meets the qualifications for eligibility to the Office of President under the Constitution.”

It becomes immediately obvious to any who are familiar with the status of the ‘legal definition of natural born citizen’ that the proposed Bill does absolutely nothing to ‘preserve, protect and defend’ the Constitutional requirement of the ‘eligibility’ of a candidate for an executive office except as for age and length of residency of the candidate

Although with numerous request have been made to Senate and Congressional Representatives, both State and Federal, as of yet not a single Representative has expressed their

2 understanding of the ‘legal definition of natural born citizen’ for the record except as may be found expressed in S. Res. 511.

Apparently, like pornography, one only knows one when one sees one?

So the question must be asked, what then is H.R. 1503 seeking to verify with its requirements; “…birth certificate, together with such other documentation as may be necessary to establish that the candidate meets the qualifications for eligibility to the Office of President under the Constitution.” (?)

Is it only to verify the candidates age is at least 35 years old and that the candidate has been ‘fourteen years a resident within the United States’? It is clear from the text of the Bill H.R. 1503 that there is no effort is to identify the definition of a natural born citizen, in that there are no words that specifically say so. But then the Congressional Finding is clear in the understanding that being a natural born citizen is a significant requirement of eligibility;

3 SECTION 1. FINDING. Congress finds that under section 5 of article II of the Constitution of the United States, in order to be eligible to serve as President, an individual must be a natural born citizen of the United States who has attained the age of 35 years and has been a resident within the United States for at least 14 years.

Many of the facts that H.R. 1503 seeks to verify are ascertainable from analyzing the birth certificates issued under the authority of and in compliance with the Federal Security

Agency

-

U.

S.

Public

Health

Service,

("Reorganization Act of 1939" (P.L. 19, 76th Cong., 1st sess.), and/or its successor agencies. These Birth Certificates provides for the birthplace of the parents, father and mother, as well as the child’s, providing citizenship status of each of them by virtue of the Fourteenth Amendment, under its current authority, at the minimum.

However, when looking at historical records, the status of a child born within the jurisdiction of the United States to two citizen parents, father and mother, that child’s birth right citizenship has not been subject of dispute nor considered anything other than a natural born citizen [88 U.S. 162,

4 168], just as the Senate concluded in S.Res.511, although there is some lingering uncertainty regarding ‘Jurisdiction’ in Senator McCain’s birth circumstance.

It appears, when reviewing the historical considerations of American citizenship found in the Legislation of Acts, Bills, Amendments and Judicial Opinions, that the uncertainties in defining of the nature of American citizenship, in general, and an American natural born citizen, specifically, turns on the interpretations of; “…and subject to the jurisdiction thereof…”, and; “…allegiance…”

But that uncertainty would be resolved when the full import of “The Preamble to the Constitution” is viewed with it’s apparent investment and assignment of both Jurisdiction and Allegiance into the Constitution its self and the derived Citizenship of “We, the People of the United States” from it;

5 “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The poetic clarity is too plain to ignore and word by word parsing does nothing to diminish the obvious, that the Constitution IS the United States of America, that which, with It’s (the Constitutions) words, defines the extent of Jurisdictions of the United States of America, that being to We the People.

In whatever measure we secure the Blessings of Liberty to Ourselves and Our Posterity, it is from It (the Constitution) and therefore we owe our Allegiance to It (the Constitution). From that Allegiance is found both the constraining and expansive limits of Jurisdiction to be determined by the contemplative Laws of the Constitutionally guaranteed Republican form of government guaranteed and provided to all accepted into It’s (the Constitution’s) Jurisdiction with, then, Allegiance to be owed to It (the Constitution).

6 The Preamble is Positive Declaratory Statement of the collective, stating who they were and what was being set about for their selves and the generations which would spring from their endeavors with the binding propositions, The Preamble explains the purposes of the Constitution, and defines the powers of the new government as originating from the people of the United States. http://www.senate.gov/civics/constitution_item/constitut ion.htm

Although this short descriptive offers little more than a dictionary definition it contains all of the dispositive elements supporting the ‘investment and assignment of allegiance and jurisdiction’ to the Constitution in and of itsself with both the Land and the Peoples thereof being the beneficiaries of it’s adoption and establishment.

Given that, after 222 years, the definition of ‘natural born citizen’ has not been codified it would be poetic Justice now for this Court, now, to rely on the Preamble to the Constitution to find the meaning and vision of the Framers when contemplating the nature and Constitutional Vision of

7 the American Citizens. That New Nation was founded upon their ‘allegiance’ to a ‘new purpose of government’, mixed with their spilled ‘blood’ in the conflict to secure the soil, the foothold and beachhead, of the new form of Jurisdiction, the New Constitution, of the People, by the People and for the People, endeavoring to ‘establish Justice, insure Domestic Tranquility, provide for the Common Defense, promote the General Welfare by and amongst the People that would call this new notion and vision of self government so Ordained and Established, The United States of America by those of the Original States and by those, so accepted, thereafter.

This view was, again poetically, expressed by Francis Bellamy when he wrote the “Pledge of Allegiance” in 1892; "I Pledge Allegiance to my Flag and the Republic for which it stands, one nation indivisible with liberty and justice for all." And amended several times until The U.S. Congress officially recognized the Pledge as the official national pledge on June 22, 1942 in its current form;

8 "I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all” The

Court,

with

indulgence,

may

agree

that

it

is

unnecessary to list the numerous instances of the Executive Branch, the Legislative Branch and this Judicial Branch having extended their Jurisdiction into foreign lands supporting the proposition that ‘America is where the American Citizen is’, and simply state the obvious that even though that citizen may not, on their own, be able to secure their ‘rights and privileges’ where ever they may be outside the physical boundaries of the United States, still the United States reserves the right to ‘reach out’ and ‘preserve, protect and defend’ the rights and privileges of that citizen.

Therefore

an

American

citizens

allegiance

must

be

considered as “…and subject to the jurisdiction thereof…” being of the Constitution and not to a piece of land, or a State, ( 83 U.S. 36 [p74]), whether within the physical boundaries of jurisdiction or without.

9 When outside the physical boundaries, then Citizenship is carried as if the soil of America, being the fibers of the Constitution, is mixed within that citizens own blood so that where ever they are found, there too is found an honored piece of America, that space that an American Citizen occupies, [88 U.S. 162, 166] (83 U.S. 36 [p80]).

But then there are instances when Allegiance is questioned noting that one can not read minds and hearts so as to allow determination of where that Allegiance resides. This then is where the definition of an American Citizen and the English Common Law definitions governing Citizenship and Subjects depart from one another and where the divide between an American citizen and an American natural born citizen is found. Where the English Law allows for alienation’s to be found in the hearts and minds of their Colonial subjects within the places and

in the customs of their Colonial subjects forefathers, never the less, Allegiance to the Crown is imposed upon those Citizen Subjects by both imposed force and imposed Law.

10 In contrast, the American naturalized citizen gives an Oath of Allegiance freely and without mental reservations when citizenship is granted; (8 C.F.R. Part 337 (2008)) "I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God."

When citizenship is obtained by the 14th Amendment to one traveling through (in transitu) or newly arrived (immigrant) or of parents not both citizens, the allegiance of one so born is assumed from the natural attachment to the soil, being the construct of the 14th Amendment to the Constitution, yet still remains subject to the election of citizenship options which may be made by their, then, non-citizen parent(s). Although the result of the decision within United States v. Wong Kim Ark 169 U.S. 649 ‘imposed’ citizenship upon all

11 persons born within the physical jurisdiction of America, the right of ‘affirmative renunciation’ remains.

Then to the American natural born citizen, who possess no alienation of allegiance at birth, being of two American citizen parents, receives their citizenship as a natural birthright emanating from the jurisdictional allegiance of the citizen parents. Here, allegiance can be assumed to grow through the allegiance held by their fathers (parents). [88 U.S. 162, 166] (Vattel: Bk 1 Ch. 19 § 212.) This is not guaranteed, given the nature of life, but more often than not it is true, when that which has been honored by the fathers (parents) finds favor with the child when raised amongst the continued good governance and liberties under the terms of the societal (Constitutional) contract.

This was the natural state understood and acknowledged by the Framers when considering the qualifications of the various Representatives and Executive Officers.

12 Being that ‘all politics is local’ the Representatives sent to the Halls of the Federal Government were to be chosen by their local electorate, who could best know their hearts and minds, hence the lower threshold of qualification for eligibility. But when considering those whose hand would be at the tiller of the ‘Ship of State’ and upon whose voice the Military would rise to commands to take actions, no limits of qualification or scrutiny of character and allegiance are sufficient, but without additional alternatives or options, the most indispensable of qualifications was for the Executive Officers to be an unadulterated natural born citizen and this was seen to be wise and prudent measure; Story, Joseph. Commentaries on the Constitution of the United States. Boston, 1833. § 1473. [I]t is indispensable, too, that the president should be a natural born citizen of the United States; or a citizen at the adoption of the constitution, and for fourteen years before his election. This permission of a naturalized citizen to become president is an exception from the great fundamental policy of all governments, to exclude foreign influence from their executive councils and duties. It was doubtless introduced (for it has now become by lapse of time merely nominal, and will soon become wholly extinct)……………………[B]ut the general propriety of the exclusion of foreigners, in common cases, will scarcely be doubted by any sound

13 statesman. It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections,…[e]xamples of the enduring mischiefs arising from this source…”

And as expressed by John Bingham in the United States House on March 9, 1866 (Cong. Globe, 39th, 1st Sess., 1291 (1866))

”I find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…”

Regarding H.R. 133; “To amend the Immigration and Nationality Act to deny citizenship at birth to children born in the United States of parents who are not citizens or permanent resident aliens.”

and H.R. 1490; “To amend section 301 of the Immigration and Nationality Act to clarify those classes of individuals born in the United States who are nationals and citizens of the United States at birth.”

14 Although both Bills seek to end the “Birth Right” citizenship grant assumed by the 14th Amendment that has been extended to illegal and/or undocumented aliens (169 U.S. 649) each of the Bills turn on the interpretation of;

“... and subject to the jurisdiction thereof…”

The proposition of the nature of citizenship being derived from the Preamble to the Constitution suggests that ‘Allegiance and

Jurisdiction’ are indivisible. When there is divided and/or no allegiance assumed to the Jurisdiction (Constitution), then Citizenship is subject to Judicial interpretations and Legislative grants and by the election of citizenship options available to the parent(s), while in the alternative, when allegiance of the parents is unadulterated at birth the ‘rights and privileges’ of citizenship confers, naturally, to the natural born citizen, regardless of the jurisdiction (beyond the physical boundaries of the USA) subject only to the purpose of parents travel, either temporary and fugitive

15 purpose, in transitu or the intent of general inhabitancy abroad, animo manendi. . (S.Res.511) ( 88 U.S. 162 )

Petitioner asserts that the nature, and therefore the definition, of a Natural Born Citizen is, and should be declared as; “A Natural Born Citizen of America is a person being born within the Natural Birth Right Privileges enjoyed by all American Citizens; that being of American Citizen Parents, a Father and a Mother, however their citizenship was derived, with each being with Allegiance to the Constitution and without alienation of allegiance being owed to any other Jurisdiction, investing into their child(ren), by natural laws and of the Constitution, the bound Citizenship of such Parents.”

“Maintenance of the Birth Right Privilege is the obligation of the Parents in the circumstance of Birth within the Jurisdiction of Foreign Lands with and by the Laws of United States Citizenship promulgated to regulate such circumstances.”

iiii CONCLUSION

In light of the historic and continuing uncertainty concerning the ‘legal definition of natural born citizen’ within the Congress, within these Courts, amongst the general citizenry at large, which by extension, effects the understandings of Allegiance, Jurisdiction and the Sovereignty of the United States, Petitioner appeals to this Court grant the Writ of Certiorari, remanding to the Tenth Circuit with invitation to the Respondent, the United States, to submit a brief in response addressing the subject question of this action under Rule 2.1 of that Court, allow the Motion for Leave to file Second Amended Complaint with directions to the Tenth Circuit to consider Petitioner’s prior motions for Certification of Class Action, Certification of Constitutional Question and Motion for Declaratory Judgement, being in full expectation that the Respondent, the United States, shall concur with the particulars of Petitioner’s expressions of definition of the Article II Section I Clause V, ‘natural born citizen’.

Respectfully submitted,

___________________________ Steven Lee Craig [email protected] Date:

July 8th , 2009

No. 08-10817 _____________________ IN THE SUPREME COURT OF THE UNITED STATES

Steven Lee Craig— PETITIONER VS. The United States— RESPONDENT(S) PROOF OF SERVICE I, Steven Lee Craig, do swear or declare that on this date, July 8th, 2009, as required served the enclosed Motion for Leave to file Supplemental Brief before Judgement and Supplemental Brief on each party to the above proceeding or that party’s counsel, and on every other person required to be served, by depositing an envelope containing the above documents in the United States mail properly addressed to each of them and with firstclass postage prepaid. The names and addresses of those served are as follows: Solicitor General of the United States Room 5614 Department of Justice 950 Pennsylvania Avenue, N. W. Washington, DC 20530-0001 Attn: Elena Kagan

I declare under penalty of perjury that the foregoing is true and correct.

___________________________ Executed on July 8th, 2009 [email protected]

16 ALL ACTIONS:

3/12/2009: Referred to the House Committee on House Administration. Co-sponsors; H.R. 1503 : Mr. Goodlatte. H.R. 1503 : Mr. Campbell. H.R. 1503 : Mr. Carter, Mr. Culberson, and Mr. Neugebauer. H.R. 1503 : Mrs. Blackburn. To amend the Federal Election Campaign Act of 1971 to require the principal campaign committee of a candidate for election to the office of President to include with the committee's... (Introduced in House) HR 1503 IH 111th CONGRESS 1st Session H. R. 1503 To amend the Federal Election Campaign Act of 1971 to require the principal campaign committee of a candidate for election to the office of President to include with the committee's statement of organization a copy of the candidate's birth certificate, together with such other documentation as may be necessary to establish that the candidate meets the qualifications for eligibility to the Office of President under the Constitution. IN THE HOUSE OF REPRESENTATIVES

March 12, 2009 Mr. POSEY introduced the following bill; which was referred to the Committee on House Administration A BILL To amend the Federal Election Campaign Act of 1971 to require the principal campaign committee of a candidate for election to the office of President to include with the committee's statement of organization a copy of the candidate's birth certificate, together with such other documentation as may be necessary to establish that the candidate meets the qualifications for eligibility to the Office of President under the Constitution. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. FINDING. Congress finds that under section 5 of article II of the Constitution of the United States, in order to be eligible to serve as President, an individual must be a natural born citizen of the United States who has attained the age of 35 years and has been a resident within the United States for at least 14 years.

SEC. 2. REQUIRING PRINCIPAL CAMPAIGN COMMITTEES OF PRESIDENTIAL CANDIDATES TO PROVIDE DOCUMENTATION OF CANDIDATE'S ELIGIBILITY TO SERVE AS PRESIDENT. (a) In General- Section 303(b) of the Federal Election Campaign Act (2 U.S.C. 433(b)) is amended-(1) by striking `and' at the end of paragraph (5); (2) by striking the period at the end of paragraph (6) and inserting `; and'; and (3) by adding at the end the following new paragraph: `(7) in the case of a principal campaign committee of a candidate for election to the office of President, a copy of the candidate's birth certificate, together with such other documentation as may be necessary to establish that the candidate meets the qualifications for eligibility to the Office of President under section 5 of article II of the Constitution.'. (b) Effective Date- The amendment made by subsection (a) shall apply with respect to the election for the office of President held in 2012 and each succeeding election for the office of President.

17 110th CONGRESS 1st Session H. R. 133 To amend the Immigration and Nationality Act to deny citizenship at birth to children born in the United States of parents who are not citizens or permanent resident aliens. IN THE HOUSE OF REPRESENTATIVES January 4, 2007 Mr. GALLEGLY introduced the following bill; which was referred to the Committee on the Judiciary A BILL To amend the Immigration and Nationality Act to deny citizenship at birth to children born in the United States of parents who are not citizens or permanent resident aliens. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the `Citizenship Reform Act of 2007'. SEC. 2. PURPOSE. It is the purpose of this Act to deny automatic citizenship at birth to children born in the United States to parents who are not citizens or permanent resident aliens. SEC. 3. DENYING CITIZENSHIP AT BIRTH FOR CHILDREN OF NON-CITIZEN, NON-PERMANENT RESIDENT ALIENS. (a) In General- Section 101 of the Immigration and Nationality Act (8 U.S.C. 1101) is amended by inserting after subsection (c) the following new subsection: `(d) For purposes of section 301(a), a person born in the United States shall be considered as `subject to the jurisdiction of the United States' if-`(1) the child was born in wedlock in the United States to a parent who is-`(A) a citizen or national of the United States; or `(B) an alien lawfully admitted for permanent residence in the United States who maintains his or her residence (as defined in subsection (a)(33)) in the United States; or `(2) the child was born out of wedlock in the United States-`(A) to a mother who is-`(i) a citizen or national of the United States; or `(ii) an alien lawfully admitted for permanent residence in the United States who maintains her residence (as defined in subsection (a)(33)) in the United States; or `(B) to a father who is a citizen or national of the United States, or an alien lawfully admitted for permanent residence in the United States who maintains his residence (as defined in subsection (a)(33)) in the United States, but only if-`(i) a blood relationship between the father and the child is established by clear and convincing evidence; `(ii) the father had the nationality of the United States or was a permanent resident of the United States at the time of the child's birth; `(iii) the father (unless deceased) has agreed in writing to provide financial support for the child until the child reaches18 years of age; and `(iv) while the child is under 18 years of age-`(I) the father acknowledges paternity of the child in writing under oath; or `(II) the paternity of the child is established by adjudication of a competent court. For purposes of this subsection, a child is considered to be `born in wedlock' only if both parents are married to each other and parents are not considered to be married if such marriage is only a common law marriage.'. (b) Conforming Amendment- Section 301 of such Act (8 U.S.C. 1401) is amended by inserting `(as defined in section 101(d))' after `subject to the jurisdiction thereof'.(c) Effective Date- The amendments made by this section shall apply to aliens born on or after the date of the enactment of this Act.

18 110th CONGRESS 1st Session H. R. 1940 To amend section 301 of the Immigration and Nationality Act to clarify those classes of individuals born in the United States who are nationals and citizens of the United States at birth. IN THE HOUSE OF REPRESENTATIVES

April 19, 2007 Mr. DEAL of Georgia (for himself, Mr. BILBRAY, and Mr. DANIEL E. LUNGREN of California) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To amend section 301 of the Immigration and Nationality Act to clarify those classes of individuals born in the United States who are nationals and citizens of the United States at birth. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE. This Act may be cited as the `Birthright Citizenship Act of 2007'.

SEC. 2. CITIZENSHIP AT BIRTH FOR CERTAIN PERSONS BORN IN THE UNITED STATES. (a) In General- Section 301 of the Immigration and Nationality Act (8 U.S.C. 1401) is amended-(1) by inserting `(a) IN GENERAL- ' before `The following'; (2) by redesignating paragraphs (a) through (h) as paragraphs (1) through (8); and (3) by adding at the end the following: `(b) Definition- Acknowledging the right of birthright citizenship established by section 1 of the 14th amendment to the Constitution, a person born in the United States shall be considered `subject to the jurisdiction' of the United States for purposes of subsection (a)(1) if the person is born in the United States of parents, one of whom is-`(1) a citizen or national of the United States; `(2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or `(3) an alien performing active service in the armed forces (as defined in section 101 of title 10, United States Code).'. (b) Applicability- The amendment made by subsection (a)(3) shall not be construed to affect the citizenship or nationality status of any person born before the date of the enactment of this Act.

April 30, 2008

CONGRESSIONAL RECORD — SENATE

JOHN S. MCCAIN, III CITIZENSHIP Mr. BROWN. Mr. President, I ask unanimous consent the Senate proceed to the immediate consideration of Calendar No. 715, S. Res 511. The PRESIDING OFFICER. The clerk will report the resolution by title. The legislative clerk read as follows: A resolution (S. Res. 511) recognizing that John Sidney McCain, III, is a natural born citizen.

There being no objection, the Senate proceeded to consider the resolution. Mr. LEAHY. Mr. President, today we are considering a bipartisan resolution to express the common sense of all in this Chamber that Senator M CCAIN is a ‘‘natural born Citizen,’’ as the term is used in the Constitution of the United States. Last week the Judiciary Committee voted unanimously to report this resolution to the Senate. I urge Senators to come together to pass this bipartisan resolution without delay. Our Constitution contains three requirements for a person to be eligible to be President—the person must have reached the age of 35; must have resided in America for 14 years; and must be a ‘‘natural born Citizen’’ of the United States. Certainly there is no doubt that Senator M CCAIN is of sufficient years on this Earth and in this country given that he has been serving in Washington for over 25 years. ‘‘However, some have raised the question whether he is a ‘‘natural born Citizen’’ because he was born outside of the United States. JOHN SIDNEY MCCAIN, III, was born to American citizens on an American Naval base in the Panama Canal Zone in 1936. His father was serving in the Navy at that time. It is possible that at the time of our Nation’s founding, the Framers of our Constitution could not imagine how pronounced our commitments overseas would become but it would make no sense to limit the careers of children born to military families simply because they were stationed overseas. Similarly, it would not make sense to punish children born to foreign service families or Ambassadors stationed overseas or children born overseas to American missionaries. They are all American citizens at the time of their birth. Numerous legal scholars have looked into the purpose and intent of the ‘‘natural born Citizen’’ requirement. As far as I am aware, no one has discovered any reason to think that the Framers would have wanted to limit the rights of children born to Americans abroad or that such a limited view would serve any noble purpose enshrined in our founding document. Based on the understanding of the pertinent sources of constitutional meaning, it is widely believed that if someone is born to American citizens anywhere in the world they are natural born citizens. It is interesting to note that another previous Presidential candidate,

George Romney, was also born outside of the United States. He was widely understood to be eligible to be President. Senator Barry Goldwater was born in a U.S territory that later became the State of Arizona. Certainly those who voted for these two Republican candidates believed that they were eligible to assume the office of the President. Because he was born to American citizens, there is no doubt in my mind that Senator MCCAIN is a ‘‘natural born Citizen’’. I recently asked Secretary of Homeland Security Michael Chertoff, a former Federal judge, if he had any doubts in his mind. He did not. Former Solicitor General Theodore Olson and Harvard Law School Professor Laurence Tribe also analyzed the issue and came to the same conclusion—that Senator M CCAIN is a natural born citizen eligible to serve as President. Our bipartisan resolution would make it clear that Senator MCCAIN, born in 1936 on an American Naval base to U.S. citizens, is a ‘‘natural born Citizen. We should act today on a bipartisan basis to erase any doubt that Senator M CCAIN is eligible to run for President because of his citizenship status. I ask unanimous consent that the legal analysis of Theodore Olson and Laurence Tribe be printed in the R ECORD. There being no objection, the material was ordered to be printed in the R ECORD, as follows: GIBSON , DUNN & C RUTC HER LLP, Washington, DC, April 8, 2008. Re legal analysis of question whether Senator John McCain is a natural born citizen eligible to hold the office of President. Hon. PATRIC K J. L EAHY , Chairman, Committee on the Judiciary, U.S. Senate, Dirksen Senate Office Building, Washington, DC. DEAR CHAIR MAN L EAHY : Pursuant to a request received from the staff of your Committee, I enclose for your and your Committee’s consideration a copy of my and Professor Laurence Tribe’s analysis of the question whether Senator John McCain is a natural-born citizen eligible, under Article II of the Constitution, to hold the office of President of the United States. Professor Tribe and I are in agreement that the circumstances of Senator McCain’s birth to American parents in the Panama Canal Zone make him a natural-born citizen within the meaning of the Constitution. Please do not hesitate to contact me if I can be of further assistance in this matter. Very truly yours, THEODOR E B. OLSON . GIBSON , DUNN & C RUTC HER LLP Washington, DC, April 8, 2008. Re legal analysis of question whether Senator John McCain is a natural born citizen eligible to hold the office of President. Hon. ARLEN S PECTER, Ranking Member, Committee on the Judiciary, U.S. Senate, Dirksen Senate Office Building, Washington, DC. DEAR S ENATOR SPECTER: Pursuant to a request received from Democratic Committee staff, I enclose for your consideration a copy of my and Professor Laurence Tribe’s analysis of the question whether Senator John McCain is a ‘‘natural born citizen’’ eligible, under Article II of the Constitution, to hold

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the office of President of the United States. Professor Tribe and I are in agreement that the circumstances of Senator McCain’s birth to American parents in the Panama Canal Zone make him a natural born citizen within the meaning of the Constitution. Please do not hesitate to contact me if I can be of further assistance in this matter. Very truly yours, THEODOR E B. OLSON . M ARCH 19, 2008. We have analyzed whether Senator John McCain is eligible for the U.S. Presidency, in light of the requirement under Article II of the U.S. Constitution that only ‘‘natural born Citizen[s] . . . shall be eligible to the Office of President.’’ U.S. Const. art. II, § 1, cl. 5. We conclude that Senator McCain is a ‘‘natural born Citizen’’ by virtue of his birth in 1936 to U.S. citizen parents who were serving their country on a U.S. military base in the Panama Canal Zone. The circumstances of Senator McCain’s birth satisfy the original meaning and intent of the Natural Born Citizen Clause, as confirmed by subsequent legal precedent and historical practice. The Constitution does not define the meaning of ‘‘natural born Citizen.’’ The U.S. Supreme Court gives meaning to terms that are not expressly defined in the Constitution by looking to the context in which those terms are used; to statutes enacted by the First Congress, Marsh v. Chambers, 463 U.S. 783, 790–91 (1983); and to the common law at the time of the Founding. United States v. Wong Kim Ark, 169 U.S. 649, 655 (1898). These sources all confirm that the phrase ‘‘natural born’’ includes both birth abroad to parents who were citizens, and birth within a nation’s territory and allegiance. Thus, regardless of the sovereign status of the Panama Canal Zone at the time of Senator McCain’s birth, he is a ‘‘natural born’’ citizen because he was born to parents who were U.S. citizens. Congress has recognized in successive federal statutes since the Nation’s Founding that children born abroad to U.S. citizens are themselves U.S. citizens. 8 U.S.C. § 1401(c); see also Act of May 24, 1934, Pub. L. No. 73–250, § 1, 48 Stat. 797, 797. Indeed, the statute that the First Congress enacted on this subject not only established that such children are U.S. citizens, but also expressly referred to them as ‘‘natural born citizens.’’ Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103, 104. Senator McCain’s status as a ‘‘natural born’’ citizen by virtue of his birth to U.S. citizen parents is consistent with British statutes in force when the Constitution was drafted, which undoubtedly informed the Framers’ understanding of the Natural Born Citizen Clause. Those statutes provided, for example, that children born abroad to parents who were ‘‘natural-born Subjects’’ were also ‘‘natural-born Subjects . . . to all Intents, Constructions and Purposes whatsoever.’’ British Nationality Act, 1730, 4 Geol. 2, c. 21. The Framers substituted the word ‘‘citizen’’ for ‘‘subject’’ to reflect the shift from monarchy to democracy, but the Supreme Court has recognized that the two terms are otherwise identical. See, e.g., Hennessy v. Richardson Drug Co., 189 U.S. 25, 34– 35 (1903). Thus, the First Congress’s statutory recognition that persons born abroad to U.S. citizens were ‘‘natural born’’ citizens fully conformed to British tradition, whereby citizenship conferred by statute based on the circumstances of one’s birth made one natural born. There is a second and independent basis for concluding that Senator McCain is a ‘‘natural born’’ citizen within the meaning of the Constitution. If the Panama Canal Zone was sovereign U.S. territory at the time of Senator McCain’s birth, then that fact alone

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would make him a ‘‘natural born’’ citizen under the well-established principle that ‘‘natural born’’ citizenship includes birth within the territory and allegiance of the United States. See, e.g., Wong Kim Ark, 169 U.S. at 655–66. The Fourteenth Amendment expressly enshrines this connection between birthplace and citizenship in the text of the Constitution. U.S. Const. amend. XIV, § 1 (‘‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. * * * ’’) (emphases added). Premising ‘‘natural born’’ citizenship on the character of the territory in which one is born is rooted in the common-law understanding that persons born within the British kingdom and under loyalty to the British Crown—including most of the Framers themselves, who were born in the American colonies—were deemed ‘‘natural born subjects.’’ See, e.g., 1 William Blackstone, Commentaries on the Laws of England 354 (Legal Classics Library 1983) (1765) (‘‘Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king.* * * ’’). There is substantial legal support for the proposition that the Panama Canal Zone was indeed sovereign U.S. territory when Senator McCain was born there in 1936. The U.S. Supreme Court has explained that, ‘‘[f]rom 1904 to 1979, the United States exercised sovereignty over the Panama Canal and the surrounding 10-mile-wide Panama Canal Zone.’’ 0’Connor v. United States, 479 U.S. 27, 28 (1986). Congress and the executive branch similarly suggested that the Canal Zone was subject to the sovereignty of the United States. See, e.g., The President—Government of the Canal Zone, 26 Op. Att’y Gen. 113, 116 (1907) (recognizing that the 1904 treaty between the United States and Panama ‘‘imposed upon the United States the obligations as well as the powers of a sovereign within the [Canal Zone]’’); Panama Canal Act of 1912, Pub. L. No. 62–337, § 1, 37 Stat. 560, 560 (recognizing that ‘‘the use, occupancy, or control’’ of the Canal Zone had been ‘‘granted to the United States by the treaty between the United States and the Republic of Panama’’). Thus, although Senator McCain was not born within a State, there is a significant body of legal authority indicating that he was nevertheless born within the sovereign territory of the United States. Historical practice confirms that birth on soil that is under the sovereignty of the United States, but not within a State, satisfies the Natural Born Citizen Clause. For example, Vice President Charles Curtis was born in the territory of Kansas on January 25, 1860—one year before Kansas became a State. Because the Twelfth Amendment requires that Vice Presidents possess the same qualifications as Presidents, the service of Vice President Curtis verifies that the phrase ‘‘natural born Citizen’’ includes birth outside of any State but within U.S. territory. Similarly, Senator Barry Goldwater was born in Arizona before its statehood, yet attained the Republican Party’s presidential nomination in 1964. And Senator Barack Obama was born in Hawaii on August 4, 1961—not long after its admission to the Union on August 21, 1959. We find it inconceivable that Senator Obama would have been ineligible for the Presidency had he been born two years earlier. Senator McCain’s candidacy for the Presidency is consistent not only with the accepted meaning of ‘‘natural born Citizen,’’ but also with the Framers’ intentions when adopting that language. The Natural Born Citizen Clause was added to the Constitution shortly after John Jay sent a letter to George Washington expressing concern about

‘‘Foreigners’’ attaining the position of Commander in Chief. 3 Max Farrand, The Records of the Federal Convention of 1787, at 61 (1911). It goes without saying that the Framers did not intend to exclude a person from the office of the President simply because he or she was born to U.S. citizens serving in the U.S. military outside of the continental United States; Senator McCain is certainly not the hypothetical ‘‘Foreigner’’ who John Jay and George Washington were concerned might usurp the role of Commander in Chief. Therefore, based on the original meaning of the Constitution, the Framers’ intentions, and subsequent legal and historical precedent, Senator McCain’s birth to parents who were U.S. citizens, serving on a U.S. military base in the Panama Canal Zone in 1936, makes him a ‘‘natural born Citizen’’ within the meaning of the Constitution. L AUR ENC E H. T RIBE . THEODOR E B. OLSON .

Mr. BROWN. Mr. President, I ask unanimous consent the resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid upon the table, with no intervening action or debate, and any statements be printed in the R ECORD. The PRESIDING OFFICER. Without objection, it is so ordered. The resolution (S. 511) was agreed to. The preamble was agreed to. The resolution, with its preamble, is as follows: S. RES. 511 Whereas the Constitution of the United States requires that, to be eligible for the Office of the President, a person must be a ‘‘natural born Citizen’’ of the United States; Whereas the term ‘‘natural born Citizen’’, as that term appears in Article II, Section 1, is not defined in the Constitution of the United States; Whereas there is no evidence of the intention of the Framers or any Congress to limit the constitutional rights of children born to Americans serving in the military nor to prevent those children from serving as their country’s President; Whereas such limitations would be inconsistent with the purpose and intent of the ‘‘natural born Citizen’’ clause of the Constitution of the United States, as evidenced by the First Congress’s own statute defining the term ‘‘natural born Citizen’’; Whereas the well-being of all citizens of the United States is preserved and enhanced by the men and women who are assigned to serve our country outside of our national borders; Whereas previous presidential candidates were born outside of the United States of America and were understood to be eligible to be President; and Whereas John Sidney McCain, III, was born to American citizens on an American military base in the Panama Canal Zone in 1936: Now, therefore, be it Resolved, That John Sidney McCain, III, is a ‘‘natural born Citizen’’ under Article II, Section 1, of the Constitution of the United States. f

ORDER FOR AUTHORITY TO SIGN ENROLLED BILLS AND JOINT RESOLUTIONS Mr. BROWN. Mr. President, I ask unanimous consent that during the adjournment of the Senate, the majority leader be authorized to sign duly enrolled bills or joint resolutions. The PRESIDING OFFICER. Without objection, it is so ordered.

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April 30, 2008 APPOINTMENTS

The PRESIDING OFFICER. The Chair, on behalf of the Vice President, pursuant to 22 U.S.C. 276d–276g, as amended, appoints the following Senators as members of the Senate Delegation to the Canada-U.S. Interparliamentary Group conference during the Second Session of the 110th Congress: the Honorable G EORGE V. VOINOVICH of Ohio, and the Honorable LISA A. MURKOWSKI of Alaska. f

ORDERS FOR THURSDAY, APRIL 30, 2008 Mr. BROWN. Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand adjourned until 9:30 a.m. tomorrow, Thursday, May 1; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, the time for the two leaders be reserved for their use later in the day, there then be a period of morning business for up to 1 hour with Senators permitted to speak for up to 10 minutes each, with the Republicans controlling the first half and the majority controlling the second half; and following morning business, the Senate resume consideration of H.R. 2881, the FAA reauthorization bill. The PRESIDING OFFICER. Without objection, it is so ordered. f

ORDER FOR ADJOURNMENT Mr. BROWN. If there is no further business to come before the Senate, I ask unanimous consent it stand adjourned under the previous order, following the remarks of the majority leader. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. BROWN. I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The legislative clerk proceeded to call the roll. Mr. REID. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. f

FAA REAUTHORIZATION Mr. REID. Mr. President, as we close tonight, I want everyone within the sound of my voice to understand this: We are working on a very important piece of legislation, the reauthorization of the Federal Aviation Administration—the agency responsible for making sure aircraft is safe and reliable. Right now, we have an antiquated system. This legislation will do what has been needed for a long time to change the way we do aviation in this country. All the experts say it is long past due. We have had hard work for a

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7 FAM 1131.6 Nature of Citizenship Acquired by Birth Abroad to U.S. Citizen Parents 7 FAM 1131.6-1 Status Generally (TL:CON-68; 04-01-1998) Persons born abroad who acquire U.S. citizenship at birth by statute generally have the same rights and are subject to the same obligations as citizens born in the United States who acquire citizenship pursuant to the 14th Amendment to the Constitution. One exception is that they may be subject to citizenship retention requirements.

7 FAM 1131.6-2 Eligibility for Presidency (TL:CON-68; 04-01-1998) a. It has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural born citizen within the meaning of Article II of the Constitution and, therefore, eligible for the Presidency. b. Section 1, Article II, of the Constitution states, in relevant part that “No Person except a natural born Citizen...shall be eligible for the Office of President;” c. The Constitution does not define "natural born". The “Act to establish an Uniform Rule of Naturalization”, enacted March 26, 1790, (1 Stat.103,104) provided that, “...the children of citizens of the United States, that may be born ... out of the limits of the United States, shall be considered as natural born citizens: Provided that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”1 d. This statute is no longer operative, however, and its formula is not included in modern nationality statutes. In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes. U.S. Department of State Foreign Affairs Manual Volume 7 - Consular Affairs 7 FAM 1130 Page 9 of 103

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Allegiance, Jurisdiction, Sovereignty