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) ) Plaintiff, ) ) vs. ) ) BARACK HUSSEIN OBAMA, et. al. ) ) ) Defendants. ) ) ____________________________________________ )

Case No.: 2012CA00467

PLAINTIFF'S SUPPLEMENTAL MEMORANDUM ON THE DEFINITION OF "NATURAL BORN CITIZEN" Plaintiff has pled that Defendant Obama fails to meet the eligibility requirements for the Presidency of the United States. This brief sets forth the rightful definition of "natural born citizen," a requirement mandated by the Constitution, for eligibility to run for and hold the Office of the President of the United States ("Office of the President" or "POTUS" or "President"). INTRODUCTION In founding this country, the framers took great care in drafting and setting forth a new form of government. The POTUS was established to become the leader of the nation. The framers knew that this office, and the person elected to hold it, would command great power. This elected President would be the Commander in Chief of the United States armed forces, and would negotiate treaties on behalf of all the states within the United States. In order to prevent even a slight hint of foreign influence the framers set forth stringent requirements, more stringent than for any other official positions within the United States government. The President of the

United States, they demanded, must be more than just a citizen. A citizen could be naturalized after arriving from another country. A citizen could be born to foreign parents within the United States soil. In either of these scenarios, this new "citizen" would, at least to some extent, hold allegiances to foreign nations. It was with this knowledge that the framers built in a more stringent requirement for POTUS. The President would need to be a "natural born citizen." The term "natural born citizen" was one who was born to two citizen parents. This term, used only once throughout the entire Constitution, is the built in safeguard that the framers included to ensure that no foreign influence would be allowed into the highest office of the United States. THE LAW Any discussion of eligibility must begin with the original text. Article II, Sec. 1, Cl. 5 of the Constitution states: "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States." As set forth below, it is clear based on the laws of statutory interpretation that there is a separate and distinct meaning to the term "natural born citizen." It was with the specific intent of distancing the President from foreign influence that the framers included this requirement. The Supreme Court, in previously defining this term, has recognized the differences in the terminology and has established that a "natural born citizen" is one who was born to two citizen parents. Minor v. Happersett, 88 U.S. 162 (1875). In this landmark case, the Supreme Court


ruled that, "it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also." Id. at 167. I. The Intent Of The Framers Of The Constitution Establish That "Natural Born Citizens" Are Those Born Within The Territory Of The United States To Two Citizen Parents A. Under The Principles of Statutory Construction, The Term "Natural Born Citizen" Must Be Defined Differently And Thus Has A Different Meaning Than The Term "Citizen" It is a fundamental principle of statutory interpretation that where two different and distinct terms have been used, each is to be given its own meaning. "As always, "`[w]here there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.' ... Morton v. Mancari, 417 U.S. 535, 550 -551 (1974). . . Any argument that a federal court is empowered to exceed the limitations [of a statute]. . . without plain evidence of congressional intent to supersede those sections ignores our longstanding practice of construing statutes in pari materia. See United States v. United Continental Tuna Corp., 425 U.S. 164, 168 -169 (1976); Train v. Colorado Public Interest Research Group, 426 U.S. 1, 24(1976)." Crawford v. Gibbons, 482 U.S. 437, 445. The rationale behind this rule is based on the intent of the statute's drafters. When undertaking the important task of crafting law, the drafters of a statute certainly choose their words carefully. The drafters' goal is to create a statement of the law that is as clear and concise as possible. Thus, when an idea has been memorialized in one word or phrase, the drafter uses that one word or phrase, and it alone, to communicate the idea, since the use of two or more words or phrases would risk creating an interpretive ambiguity that would threaten to defeat purposes of the law being drafted. It is the application of this principle that gives rise to the question presently before this court.


No statutory drafters undertook their task with greater care than the framers of the Constitution of the United States. Seeking to establish a new form of government, the framers engaged in over four months of rigorous debate. The fact that the result of their efforts spans a mere four pages is a testament to the framers' commitment to concisely stating the law and proof of their intention that every word be given meaning. Thus, the requirement that the President be a "natural born Citizen," a phrase used nowhere else in the Constitution, must be given a meaning distinct from the term "citizen," a word employed on its own ten times within the Constitution. The context in which the framers use the unique phrase "natural born Citizen" further establishes their intention that it be distinguished from the term "citizen." Under Article II of the Constitution, eligibility to be President is only open to those who are "a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution". This two-pronged approach to satisfying the citizenship requirement for presidential eligibility clearly establishes the fact that the framers contemplated a future citizen class distinct from "a Citizen of the United States." A "natural born Citizen" must, therefore, possess qualifications that "a Citizen of the United States" was unable to attain "at the time of the Adoption of this Constitution." Thus, it is necessary to identify these qualifications in order to define "natural born Citizen". Firstly, naturalization must be eliminated as a means of attaining "natural born Citizen" status because it was through naturalization that all "Citizens of the United States, at the time of the Adoption of this Constitution" became citizens, having previously been citizens of England or their various countries of origin. Therefore, it would be unnecessary to specify the two modes of acquiring citizenship. By eliminating naturalization, only two qualifications for "natural born


Citizen" status can remain: birth within the territory of the United States and two United States citizen parents. The first qualification of a "natural born Citizen," birth within the territory of the United States, could not have been attained by anyone prior to the founding of our country. Since the United States was hardly more than a decade old at the time the Constitution was drafted, the only persons that would meet this qualification would have been far too young to serve as President, thus necessitating the provision for "Citizens of the United States, at the time of the Adoption of this Constitution." The second qualification of a "natural born Citizen," being born to two United States citizen parents, was similarly unattainable by anyone prior to the founding of our country. This additional requirement was necessary, however, since many British citizens remained within the territory of the United States. As explained in greater detail below, the framers were acutely concerned about the danger of foreign influence in POTUS. By requiring a person to be born to two United States citizen parents, the framers insured that hostile foreign interests would not be able to infiltrate the highest office of our fledgling country through a child born to foreign citizens on United States soil. B. The Framers' Goals In Restricting Eligibility For The Office Of The President Require That "Natural Born Citizens" Be Born Within The Territory Of The United States To Two Citizen Parents At the time of the drafting of the Constitution, the United States was hardly more than a decade old. With the Revolutionary War still fresh in their minds, the framers of the Constitution were acutely aware of the country's susceptibility to foreign influence. In this regard, the framers were centrally concerned with the Office of the President.


On July 25, 1787, in a letter to George Washington, who had been elected to preside over the Constitutional Convention, future Chief Justice of the Supreme Court John Jay states: "Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the American army shall not be given to, nor devolve on, any but a natural born Citizen."1 Similarly, in Federalist 68, written in 1788, Alexander Hamilton, who himself was born outside of the United States, recognized the need for the stringent requirements for the Office of President of the United States: "Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one querter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention." Federalist 68. The danger contemplated by Jay and Hamilton is very real. As the events of the past two decades have taught us, hostile foreign powers are actively seeking to infiltrate our society. Take the example of John Walker Lindh, the young man from California who was recruited by Al Qaeda and fought against American forces in Afghanistan. Or Jose Padilla, an American citizen, born in New York, who was arrested on suspicion of plotting to detonate a "dirty bomb" in Chicago. Through the use of internet chat rooms, message boards and other interactive websites, terrorist groups continue to spread anti-American messages and recruit new American adherents to their violent mission to destroy our country.


Available at (last viewed on June 5, 2012) (Emphasis in original).


In light of these recent events, it becomes clear that the Federalists' concerns would have been ignored if the only qualification for the President's citizenship were that he be born in the territory of the United States. If, for example, a foreign born terrorist were to recruit an American spouse to their terrorist organization, any of their children would be eligible to be President if they were born in the United States. If this scenario seems too farfetched, consider the effect that having a foreign citizen parent is likely to have on a president's decision-making. It is far from inconceivable that a President born to a, say, Swedish citizen father wouldn't feel inclined to grant preferential treatment to Sweden in treaty negotiations. In a modern day context, suppose a child is born to a father who lives in an Islamic country such as Iran. Iran purportedly is in the process of obtaining nuclear weapons. This President might be required, as seems increasingly likely with every passing day, to order an attack on Iran in order to prevent it from obtaining the nuclear weapons. Any decision to attack that country could potentially harm or kill his father and other family members. This conflict of interest would put the safety of the United States, as well as our allies, at risk. Another example would be if the President is born to citizens of South Africa who have established a domicile in the United States at the time their child is born. The President and his party could then be asked to put forth immigration legislation which would require the revocation of this his father's visa and the deportation of his father back to South Africa. The president would once again be conflicted within his decision making based on the immigration of his parents, and his decision would likely be determined, in part, by the effect that it will have on his family.


Situations such as these demonstrate the potential conflicts that could arise as a result of having a President with too close of ties to another country. With the revolutionary war fresh in their minds, it is these scenarios that the framers of the Constitution sought to avoid by requiring that the President be not only born within the territory of the United States, but also that both of his or her parents be United States citizens. The division of a President's allegiance gives rise to too great a danger to permit any lesser standard. II. The Term "Natural Born Citizen" Has Been Historically Understood And Interpreted To Require Birth Within The Territory Of The United States To Two Citizen Parents The term that a natural born citizen was one born in the country with two citizen parents, was the prevalent view of the time. In his landmark treatise "A Treatise on Citizenship," Alexander Peter Morse definitively stated the accepted law on "natural born citizen," "A citizen, in the largest sense, is any native or naturalized person who is entitled to full protection in the exercise and enjoyment of the so-called private rights. The natural born, or native is one who is born in the country, of citizen parents." Morse, Alexander Peter, A Treatise on Citizenship pp. xi (1881) See Exhibit 1(Attached). "Under view of the law of nations, natives, or natural born citizens, are those born in the country, of parents who are citizens." Id. at §7. III. The Supreme Court Has Interpreted The Term "Natural Born Citizen" To Require Birth Within The Territory Of The United States To Two Citizen Parents In defining the terms "citizen" and "natural born citizen," the Supreme Court similarly followed the historical definitions. The definition of "citizen" was declared in the Fourteenth Amendment as "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." U.S. Cons. Amend. 14. "Citizen" was subsequently defined by the Supreme Court in Minor v.


Happersett as "a member of the nation, and nothing more." Minor v. Happersett, 88 U.S. 162, 166 (1875). The Fourteenth Amendment, ratified in 1868, did not alter, or in any way address the term "natural born citizen." The Fourteenth Amendment was enacted simply to ensure that African Americans and their children would be considered citizens of the United States. The Fourteenth Amendment did not alter, nor even address, the presidential requirement of "natural born citizen." The Supreme Court has similarly made clear that "citizen" and "natural born citizen" were two distinct and separate terms. Less than a decade after the passage of the Fourteenth Amendment, the Supreme Court clarified that" all children born in a country of parents who were its citizens" were in turn "natural born citizens." Minor v. Happersett, 88 U.S. 162, 167 (1875). The term "natural born citizen" was a more selective classification that required more than just birth on the soil. Natural born citizenship required both that the child was born on the soil of the country, and also that the child was required to meet the rule of descent or blood. The only other Supreme Court case that discusses the differences in the terminology is United States v. Wong Kim Ark, 169 U.S. 649 (1898). In Wong Kim Ark, the definition of "natural born citizen" was repeated from the earlier Minor decision. The Chinese parents of Wong Kim Ark were working within San Francisco, CA when their son was born. The parents had established a "permanent domicile and residence in the United States." The Court ruled that since the child's parents were not working as diplomats, and had no further allegiance to China, that the child was a "citizen" at birth. Yet the Wong Kim Ark Court decided only that the child was a "citizen" as the litigants did not argue and the Court did not consider, claims that the child


was a "natural born citizen." Simply put, the definition of "natural born citizen" was not before the Court. The case only decided that the child was born a citizen, while at the same time reaffirming the definition of "natural born citizen" that was previously described in Minor. It is clear based on the decisions of both Minor and Wong Kim Ark that the Supreme Court has recognized the differing terms and differing meanings. Moreover, the Court also defined "natural born citizen" as a child born to two citizen parents. No decision from that point on, or Constitutional amendment, has ever altered the meaning that was understood at that particular time. The requirements for "natural born citizen" still remain as being born in the United States to two citizen parents. Minor v. Happersett, 88 U.S. 162; Morse, Alexander Peter, A Treatise on Citizenship. CONCLUSION Under the rules of statutory construction, the unique phrase "natural born Citizen" contained in Article II of the Constitution must be defined differently than the term "citizen." In order to define this phrase, it is necessary to examine the context in which the phrase is employed as well as sources outside the Constitution as the Supreme Court found in Minor, since the Constitution does not contain definitions of its terms. By examining the context of the phrase "natural born Citizen" and the goals of the framers of the Constitution, it becomes clear that a "natural born Citizen" is one who is both born within the territory of the United States and born to two United States citizen parents. This definition is reflected in the common law of England in effect at the time of the drafting of the Constitution and thus has been confirmed by the Supreme Court of the United States.


Based on Supreme Court precedent, and the reasoning presented above, this court must hold that presidential eligibility, under Article II of the United States Constitution, requires both birth within the territory of the United States, as well as birth to two United States citizen parents. Dated: June 11, 2012 Respectfully submitted,

/s/ Larry Klayman Larry Klayman, Esq. F.L. Bar No. 246220 Klayman Law Firm 2020 Pennsylvania Ave. NW, Suite 800 Washington, DC 20006 Tel: (310) 595-0800 Email:


Exhibit 1

CERTIFICATION I HEREBY CERTIFY that a true copy of the foregoing has been served by email and the U.S. mail this 11th day of June, 2012 to the following: Hon. Terry P. Lewis Circuit Judge Leon County Courthouse Room 301-C 301 S. Monroe Street Tallahassee, FL 32301 Daniel Nordy Ashley E. Davis Florida Department of State R.A. Gray Building 500 South Bronough Street Tallahassee, FL 32399 Mark Herron Joseph Brennan Donnelly Robert J. Telfer, III Messer, Caparello & Self, P.A. Post Office Box 15579 Tallahassee, FL 32317 Stephen F. Rosenthal Podhurst Orseck, P.A. 25 West Flagler Street, Suite 800 Miami, FL 33130-1720 Richard B. Rosenthal The Law Offices of Richard B. Rosenthal, P.A. 169 East Flagler Street, Suite 1422 Miami FL 33131 James A. Peters Office of the Attorney General FL-01, The Capital Tallahassee, FL 32399-1050

Counsel for Defendants

Respectfully submitted,

/s/ Larry Klayman Larry Klayman, Esq. F.L. Bar No. 246220 Klayman Law Firm 2020 Pennsylvania Ave. NW, Suite 800 Washington, DC 20006 Tel: (310) 595-0800 Email: