Political Hay

Rahm, Roosevelt, and Residency

If Mr. Emanuel were his car, he'd have an easier time establishing his Chicago residency.

By 12.20.10

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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.

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About the Author
James M. Thunder is a Washington, D.C. attorney.