Biden’s Big Moment

On Friday evening, July 24, the Fox News Network interrupted regular programming for a short news-break.  In one of the news briefs, the Fox reporter announced that Barack Obama had arrived in Kenya, “his ancestral home,” where he would be reunited with family relatives… uncles, aunts, cousins, etc.

In that brief announcement, the Fox news division… and I assume every other major network… overlooked what was potentially one of the biggest news stories of the year.  For the first time since March 30, 1981, when John Hinckley, Jr. attempted to assassinate Ronald Reagan outside the Washington Hilton Hotel, the reliance on Section 3 of the 25th Amendment was an absolute necessity.

Section 3 of the 25th Amendment reads as follows:

“Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.”

The basis for the applicability of the 25th Amendment during Obama’s recent visit to Kenya is contained in official regulations of the Consular Affairs Division of the U.S. Department of State, which read as follows:

“The concept of dual nationality means that a person is a citizen of two countries at the same time.   Each country has its own citizenship laws based on its own policy.  Persons may have dual nationality by automatic operation of different laws rather than by choice…

 “The U.S. Government recognizes that dual nationality exists but does not encourage it… because of the problems it may cause.  Claims of other countries on dual national U.S. citizens may conflict with U.S. law…  However, dual nationals owe allegiance to both the United States and the foreign country.  They are required to obey the laws of both countries… (emphasis added).”  

Chapter VI, Section 87(3), Subsection 1 of the 1963 Kenyan Constitution provided as follows:

“Every person who, having been born in Kenya, is on 11^th December, 1963 a citizen of the United Kingdom and Colonies (Barack Obama, Sr,)… shall become a citizen of Kenya on 12^th December 1963.  Provided that a person shall not become a citizen of Kenya by virtue of this subsection if neither of his parents was born in Kenya.  (Both of Obama’s paternal grandparents were born in Kenya.)

Subsection 2 of Chapter VI, Section 87(3) provided as follows:

“Every person who, having been born outside Kenya, is on 11th December, 1963, a citizen of the United Kingdom and Colonies shall, if his father becomes, or would but for his death have become, a citizen of Kenya by virtue of subsection (1), become a citizen of Kenya on 12th December, 1963.”

In other words, on December 12, 1963, through automatic operation of Kenyan law, Barack Obama acquired dual US-Kenyan citizenship.  Obama did not actively seek dual US-Kenyan citizenship; it was his by “automatic operation” of Kenyan law and “by descent” from his Kenyan father and his American mother.  And since there is no known evidence that Obama ever took steps to renounce his American citizenship in favor of Kenyan citizenship, he automatically lost his Kenyan citizenship under provisions of Chapter VI, Section 97(1) of the Kenyan constitution on August 4, 1984, his twenty-third birthday.

However, that was not the end of Obama’s official ties with Kenya, the country of his father’s birth.  During fiscal year 2010, the Obama administration spent some $24 million in USAID funds in Kenya in support of a “yes” vote on a new Kenyan Constitution.  Chapter 3, Section 14 of the 2010 constitution provides as follows: “A person is a citizen (of Kenya) by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen (of Kenya).  That constitution, adopted on August 4, 2010 (Obama’s 49th birthday) reinstates him as a citizen of Kenya “by birth.”  It also puts to rest forever the question of whether or not Obama currently holds dual US-Kenyan citizenship.

What interest Obama may have had in the outcome of the Kenyan constitutional referendum… a level of interest that would cause him to spend some $24 million of U.S. taxpayer funds in support of a “yes” vote… remains to be seen.  He has chosen not to enlighten us on that subject.  However, given the fact that he became a “citizen of Kenya by birth” upon ratification of the 2010 constitution, and given the fact that the rules of the U.S. State Department require him to obey the laws of Kenya anytime he visits that country, we are faced with the rather knotty question of whether or not he can serve as president of the United States while on Kenyan soil.  Further, is it even possible to simultaneously obey the laws of two countries?

I would suggest that Obama’s ability to serve as president of the United States while on Kenyan soil is highly problematic and could have been resolved by invoking Section 3 of the 25th Amendment, making Joe Biden Acting President during the two days of Obama’s stay in Kenya.  It is a question that should keep legal scholars awake at night.

Biden may on occasion slip into the Oval Office when Obama is on the golf course, just to sit in the big leather chair behind the Resolute Desk.  Regardless, Obama’s trip to Kenya was Biden’s big chance to go down in history as one of only two men, along with George H.W. Bush, who have served as Acting President of the United States.  Unfortunately, Obama’s desire not to contribute to the question of his own constitutional eligibility blew Biden’s big moment.

The mainstream media and Washington politicians may not think it’s anything to worry about, but I disagree.  To quote Biden, himself, “This is a big f _ _ _ ing deal.”

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