The issue of the eligibility of Barack Obama under the U.S.
Constitution to occupy the office of the President of the United
States was in the
press again last week — this time in the context of an Army
doctor, Lt. Col. Terrence Lakin, court-martialed for refusing
orders indirectly issued by the Commander-in-Chief.
Under the Constitution, Art. II, Sec. 1, cl. 5, there are
only three requirements for the office, two of which can be
satisfied with a birth certificate:
• natural born citizen of the United States;
• at least 35 years of age; and
• resident of the United States for 14 years.
I find it notable that this 1789 Constitution contains no
criteria concerning gender, race, ethnicity, religion (indeed a
“religious test” is specifically banned), property, experience
(such as prior public office), occupation, previous condition of
servitude, literacy or education. With respect to the residency
requirement, do you think the residency requirement pertains to
what is called domicile or actual residency? Is it 14 consecutive
years? Is it 14 years prior to election? Is it 14 years as an
adult, so grade school years do not count?
A requirement of residency for elective office was an
issue last week in Chicago. Rahm Emanuel, former Chief of Staff to
President Obama, testified before a hearing officer for the
three-member Chicago Board of Election Commissioners about his
eligibility to have his name appear on the ballot for mayor of that
city. Under the law, candidates must have been residents of the
city for a full year before Election Day, February 22, 2011.
Effective January 2, 2009, Mr. Emanuel had resigned as a
congressman representing a Chicago area district, and rented out
his Chicago home in June 2009, to assume the job with the
President-elect.
Emanuel testified that he is registered to vote in the
city (and did so early in 2010) and his car was registered — both
using the address of the home he rented out. This is peculiar.
Typically, residency is required to prove the right to vote not the
other way around, using the voter certificate and the fact of
voting to prove residency. One simply cannot vote anywhere and
everywhere one owns real property. To appear at a polling station
(or vote absentee as he did) holding oneself out to be a resident
of a house that one is barred (under a lease) from occupying would
appear to be voter fraud.
Emanuel’s attorneys distinguish between establishing
residency and abandoning residency. They
say he never intended to abandon his residency.
Thus, Emanuel testified that he always intended to return to
the city, having left only to serve the President: “The only reason
I no longer put my head down in that house [he owns and rents out]
is the president of the United States at a time of crisis asked me
to serve as chief of staff.” Of course, any and all 3,000-plus
presidential appointees could much say the same.
Emanuel testified that he left valuable personal
possessions in the house — a coat of his grandfather’s, his wife’s
wedding dress, clothes his children wore home from the hospital
just after they were born, photographs, his children’s report cards
and their drawings. His attorneys
introduced into evidence pictures of the crawlspace where these
items are stored. Since these things were stored in a home he owns
rather than a self-storage location, it does evidence intent to
return to occupy the home, but that is not current
residency. Many people rent a home with items owned by previous
tenants and owners stored there, but that does not mean that the
owners of the personal property are residents of that home.
Furthermore, Emanuel earned multimillions in investment banking
between 1998 and 2002. As of 2004, he owned a home in Michigan.
(Naftali Bendavid, Thumpin’: How Rahm Emanuel and the Democrats
Learned to Be Ruthless and Ended the Republican Revolution
(2007), p. 14.) Maybe he still owns that home and others. And in
those homes are personal possessions. Is he a resident of each of
those towns for the purposes of running for public
office?
Emanuel filed an income tax return in 2009 in which he
declared himself to be a part-time resident of Illinois — until he
rented out his home in June 2009. It is
reported that he testified that he amended this return last
month to state that he had been a full-time resident in 2009 and
lived in Chicago — at an address, however, at which he has resided
only after his October 2010 resignation as Chief of
Staff.
And while in Washington, D.C., Emanuel continued to
write checks bearing his 2009 Chicago
address.
R. Emmett Tyrrell, Jr., wrote his most recent satirical
piece
about Emanuel’s candidacy on December 2 — before the three-day
hearing last week. The evidence adduced at the hearing was stranger
than fiction. No one would make up the story of Emanuel’s quest; it
would not make credible fiction.
The residency issue of mayoral candidate Rahm Emanuel
brings to mind the residency issue of Theodore Roosevelt. In
January of 1898, Roosevelt was serving as Assistant Secretary to
the Navy when he wrote a letter to avoid $50,000 in personal taxes
assessed by New York City, claiming that he was a resident of
Washington, D.C. Following the charge up San Juan Hill on July 1,
1898, he became a candidate for governor of New York. On September
24, just prior to the start of the Republican State Convention, the
papers reported the existence of this letter which threw into doubt
Roosevelt’s satisfaction of the five-year residency requirement
under the state constitution for governor. On September 27, after
Roosevelt’s name had been placed in nomination, an attorney by the
name of Elihu Root stood up to address the convention on
Roosevelt’s behalf concerning Roosevelt’s eligibility. His speech
is recorded verbatim in the New York Times of September
28. Root distinguished between permanent residency, that is
domicile, and temporary residency. He argued that Roosevelt had
been domiciled at Oyster Bay since 1884, even while serving in New
York City as Police Commissioner (1895-97), and even while serving
in Washington as Civil Service Commissioner (1889-95) and as
Assistant Secretary of the Navy (1897-98). (Unlike Emanuel,
Roosevelt had never rented his Oyster Bay house out.) With
Roosevelt’s nomination on the same evening, Root won his verdict.
Root (1845-1937) went on to serve as Secretary of War (1899-1904)
under McKinley, Secretary of State (1905-1909) under Roosevelt, and
as U.S. Senator from New York (1909-1915). He received the Nobel
Peace Prize in 1912.
We will see in a matter of days how well Emanuel’s
attorneys have succeeded, given the specific language of the law,
case law interpreting it, and the facts. This
link contains a link to the pre-hearing brief they
filed. On Saturday, December 18, 48
Chicago area legal experts filed an amicus brief. During
the 2008 campaign, there were many comparisons made, including by
Obama himself, between Obama and Abraham Lincoln. It is
reported that this amicus brief compares
Emanuel with Lincoln.
I bear Emanuel no ill will. I believe in the rule of law.
My fondest hope is that the next mayor of Chicago, whoever he or
she is, will, simply, love Chicago as I believe Mayors Richard J.
and Richard M. Daley did.
