OPINIONS / COLUMNS (September 22 – September 28, 2008) Immigration Guide Atty. Emmanuel S. Tipon Palin vs. Obama beauty contest if McCain disqualified because not ‘natural born citizen’ Wow! What a beauty contest it’s going to be between Sarah Palin and Barack Obama if John McCain is disqualified because he is not a “natural born citizen”. A Niagara of lawsuits has been filed to disqualify McCain. Who are behind them? You know who. A San Francisco federal judge deplored their tactics saying that they are trying to defeat McCain “through litigation rather than via the democratic process.” So far, none has succeeded. But his enemies will not stop, hoping a Democratic judge will disqualify McCain before the elections. In which event, the Republicans would have to name a substitute - Sarah Palin. Natural-born citizen requirement The U.S. Constitution restricts the presidency to two classes of citizens. Article II, Section 1 provides: “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.” McCain might be considered old, but certainly he was not a citizen of the United States at the time of the adoption of the Constitution on September 17, 1787. So, is he a “natural born citizen”? McCain born in Panama Canal Zone John McCain was born at Coco Solo Naval Air Station in the Panama Canal Zone on August 29, 1936. His father, an officer in the U.S. Navy, was stationed there. “Gotcha,” exclaimed McCain’s enemies, the Panama Canal Zone is not part of the United States. Therefore, McCain is not a “natural born citizen” of the United States. Law suits On March 14, 2008, Fred Hollander filed suit in New Hampshire to disqualify McCain for not being a “natural born citizen” of the United States. The suit was dismissed because Hollander did not have “standing” to sue. More lawsuits were filed but were dismissed. The most recent action was filed in California on August 11, 2008 by Markham Robinson against John McCain, the Secretary of State of California Debra Bowen, the Republican National Committee, the Republican Party of California, and others alleging that John McCain is not a “natural born citizen” of the United States and is therefore ineligible to serve as president. He asked the court to issue a preliminary injunction to stop McCain from continuing with his candidacy. On September 16, the court refused and dismissed the case, holding that Robinson did not have “standing” to bring the suit, because Robinson was not a candidate against McCain. The court indicated that it is “highly probable” that John McCain is a “natural born citizen.” The court cited: 14th Amendment The 14th Amendment to the U.S. Constitution ratified on July 9, 1868, provides: “All 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.” This provision does not apply to Sen. McCain. Statutory provisions on citizenship Public Law No. 73-250, 48 Statutes 797, enacted on May 24, 1934, prescribes: “Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States.” This was the law at the time of Sen. McCain’s birth. 8 U.S.C. 1403, enacted on June 27, 1952, provides: (a) Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.” Sen. McCain is covered by this statute. The Robinson Case’s conclusion The challenge presented by Robinson is committed under the Constitution to the electors and the legislative branch. The Twelfth Amendment provides the manner in which the electors appointed by the states shall elect the president. A statute, 3 U.S.C. 15, directs that Congress shall count the electoral votes and hear objections to the vote. The Twentieth Amendment provides that if the president elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified. Arguments concerning qualifications can be laid before the voting public prior to the election. Once the election is over, they can be raised as objections when the electoral votes are counted. The members of Congress are well qualified to adjudicate objections to allegedly unqualified candidates. Judicial review, if any, should occur only after the electoral and congressional processes have run their course. Robinson v. Bowen, No. C 08-03836 WHA, U.S. District Court, Northern District, California, Sept. 16, 2008, Judge William Alsup. Comment: Undoubtedly, Sen. McCain is a U.S. citizen pursuant to statute. But is he a “natural born citizen” pursuant to the Constitution? The Robinson case presented a golden opportunity for the court to define the phrase “natural born citizen”. It passed, simply indicating it is “highly probable” that Sen. McCain is one. American citizens want certainty, not probability, on this crucial issue. Can’t McCain’s opponents get a lawyer well-versed in Federal Procedure so that they can meet the threshold issue of “standing”? Why not get Atty. Obama himself to file the suit? (Atty. Tipon has won all deportation cases he handled and obtained approval of all visa petitions he filed. He is from Laoag City and Magsingal, Ilocos Sur . He has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He served as an Immigration Officer. He is co-author of “Immigration Law Service,” an 8-volume practice guide for immigration officers and lawyers. Office: 905 Umi St. corner N. King, Suite 201, Honolulu, Hawaii 96819. Tel. (808) 847 1601. Fax (808) 847 1624. E-Mail: filamlaw@yahoo.com. Website: www.ImmigrationServicesUSA.com. When in Hawaii listen to the most interesting and humorous radio program on KNDI AM 1270 every Friday 7:30-8:00 AM. This article is a general overview of the subject matter discussed and is not intended as legal advice.) Ilocos Times copyright 2008 Back to top

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