A Response to Reginald Oh’s Newsweek Article: Born in the U.S.A.: Kamala Harris Is Eligible to Become Vice President

The political-driven and intellectually-vacant Newsweek Article by Reginald Oh demands a retort. Given my extensive litigation experience in this area, I am compelled by my civic duty to give that reply.  In sum, Mr. Oh conclude that: 

Is Kamala Harris ineligible to become vice president because she is not a natural born United States citizen? Can that possibly be true? The answer is no. An examination of the relevant constitutional provision and Supreme Court precedent tells us that Harris is indeed a natural born U.S. citizen and fully eligible to become vice president.

This of course begs the more important question: Can Senator Harris become President if , assuming he is elected, Mr. Biden cannot fulfill his term? As I will demonstrate below, the substantial legal precedent holds the opposite. What Mr. Oh sought to achieve in his Newsweek article, legitimizing an illegitimate candidate for Vice President who could potentially become President, has no basis in the Law of the United States.

First,  the facts: Mr. Oh states, and I have no reason to believe otherwise, that: "[Kamala Harris’] immigrant parents were not permanent resident aliens when she was born [in California]. Her parents were students, presumably in the U.S. on student visas at the time.”

Second, the law: The Constitutional provision at issue: Article II, Section 1, Clause 5 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.

Plainly, Ms. Harris is a “citizen” of the United States and entitled to all the privileges and immunities that status entitles her.  However, the Constitution adds an additional requirement for those who would seek to be President.  They must be a “natural born Citizen.”  Tellingly, Mr. Oh fails to mention this requirement in his attempt to ignore the law of this land.

This brings into focus the seminal question: Who is a “natural born Citizen”?  As detailed below, any cogent analysis of this legal-term-of-art can only arrive at one conclusion: Senator Harris, while certainly qualified to be Vice-President, could not succeed to the Office of President as she is not qualified to be President of the United States as required by Article II, Section 1, Clause 5.

In the 18th Century when the Constitution was ratified by the States, the term “natural born Citizen” had a definite meaning well known to those schooled in the law.  “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” (Emphasis added).  Senator Harris’ parents were not U.S. citizens at the time of her birth.

Importantly John Jay's July 25, 1787 letter to George Washington concluded that the Constitution should: “declare expressly that the Command in chief of the american [sic] army shall not be given to, nor devolve on, any but a natural born Citizen.”  Subsequent to John Jay's July 25, 1787, letter, on August 22, 1787, it was proposed  at the Constitutional Convention that the presidential qualifications were to be a “citizen of the United States.”  Upon objection to such a broad definition, the language was referred back to a Committee, and the Article II, Section 1 qualification clause was changed to read “natural born Citizen,” and was so reported out of Committee on September 4, 1787, and thereafter adopted in the Constitution.  Plainly, the drafters of the Constitution wanted the more limited scope of citizens who were “natural born Citizens” to be eligible to be President. 

Moreover, turning to the enactments of the First Congress for guidance, it is plain that “citizen” cannot be conflated to equate with “natural born Citizen”.  The Naturalization Act of 1790 which held: “the children of citizens of the United States, that may be born beyond sea, or 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 . . . .” (Emphasis added). Of dispositive significance is the 1790 Act's employing of the plural noun “citizens” in defining who shall be “natural born citizens.” and the singular noun as to whom are only to gain “citizenship”.  

Therefore, either Mr. Oh is a sloppy legally researcher or more likely his vapid Newsweek article was presented as purposeful political dissimulation.

All this brings me to the most glaring omission in Mr. Oh’s Newsweek polemic: His failure to cite the relevant Supreme Court case on the term “natural born Citizen”.  The only Supreme Court decision which has directly construed the “natural-born citizen” clause from Article 2, §1, is Minor v. Happersett, 88 U.S. 162 (1874).  In that case, the Supreme Court held: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Minor v. Happersett at 168 (Emphasis added).   Again, the plural noun “parents” is dispositive of the issue of who is a “natural born Citizen”.

Chief Justice John Marshall said, in delivering the opinion of the Court in Marbury v. Madison (1803): “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.”  Notably, the phrase “natural born Citizen” appears just once in the Constitution and the phrase “citizen” appears twenty-one (21) times.  Plainly, something more than just “citizenship” is required in order to be President.

Thus, I must maintain that the shoddy citations by Mr. OH to imply that Senator Harris is eligible to be President cannot stand.  The reference to de Vattel, The Naturalization Act of 1790 and the holding in Minor v. Happersett are all consistent: “natural born Citizen” is a privilege bestowed upon a special class of U.S. Citizen, to wit, a child born of two U.S. Citizen parents. Stated another way, Senator Harris is not a “natural born Citizen” and thus is ineligible to be President as her respective parents were not U.S. Citizens at the time of her birth.  Hence her presumed nomination by the Democratic Party to be Vice President is either ill-informed or a clever ruse to make the Speaker of the House, Nancy Pelosi, the next in line if Mr. Biden is elected and fails to fulfill his term in office.  Take your choice.

What is really at issue is the very fundamental question of whether We the People are to be governed by the rule of law as embodied in our organic document or instead, the whim and caprice of the ruling class which seeks to pervert the law to their desired ends.   I hold the former is the most important question of this election cycle and I will continue to raise the hue and cry as best I can.