UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

ABDUL KARIM HASSAN, 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

 Civ. No. 11-2189 (EGS) 

 

 MOTION 

 

FEDERAL ELECTION COMMISSION’S MOTION TO DISMISS 

The Federal Election Commission hereby moves this Court to dismiss this action 

pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and 

failure to state a claim upon which relief can be granted. Pursuant to LCvR 7, a memorandum of 

points and authorities and a proposed order accompany this motion. 

Respectfully submitted, 

Anthony Herman (D.C. Bar No. 424643) 

General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

/s/ Greg J. Mueller

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

February 27, 2012 FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

Case 1:11-cv-02189-EGS Document 8 Filed 02/27/12 Page 1 of 15
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

ABDUL KARIM HASSAN, 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

 Civ. No. 11-2189 (EGS) 

 

 MEMORANDUM 

 

FEDERAL ELECTION COMMISSION’S MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS 

Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, the 

Court should dismiss Hassan’s attempt to nullify the constitutional requirement that the President 

be a natural born citizen. Hassan fails to demonstrate an Article III case and controversy because 

he faces no concrete, imminent injury. Moreover, Hassan’s constitutional claim — that the Fifth 

and Fourteenth Amendments have “trumped” or abrogated the Article II requirement that the 

President be a natural born citizen of the United States (Compl. ¶¶ 31-32) — fails to state a 

claim. The natural born citizenship requirement has never been explicitly or implicitly repealed, 

and the Supreme Court has repeatedly acknowledged the provision’s vitality after ratification of 

the Fourteenth Amendment. It is constitutional to interpret the Presidential Election Campaign 

Fund Act to deny federal funds to the candidacy of a person who is ineligible to serve as 

President. This case should be dismissed. 

Case 1:11-cv-02189-EGS Document 8 Filed 02/27/12 Page 2 of 15
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I. BACKGROUND 

A. The Plaintiff 

Hassan is a naturalized United States citizen who in March 2008 announced his 

candidacy for President on his website. (Compl. ¶¶ 1, 6.) Hassan would like to receive funds 

through the Presidential Election Campaign Fund Act (“Fund Act”), 26 U.S.C. §§ 9001-13, but 

he has not alleged in his complaint that he is seeking the nomination of a “major” or “minor” 

political “party” as the Fund Act defines those terms, id. § 9002(6)-(8). (See Compl. ¶¶ 25-27.) 

In his complaint, Hassan describes his campaign as consisting largely of maintaining a website 

and posting videos on Youtube.com. (Compl. ¶¶ 13-22.) 

Previously, Hassan asked the Commission for an advisory opinion on four questions 

related to his campaign, and, pursuant to its authority under the Federal Election Campaign Act, 

2 U.S.C. §§ 431-57 (“FECA”), 2 U.S.C. § 437f, the Commission issued Advisory Opinion 

(“AO”) 2011-15 on September 2, 2011. FEC Advisory Opinion 2011-15 (Sept. 2, 2011), 

http://saos.nictusa.com/saos/searchao?SUBMIT=ao&AO=3307. Hassan asked, inter alia,

whether, as a naturalized citizen, he is eligible to receive matching funds under the Presidential 

Primary Matching Payment Account Act, 26 U.S.C. §§ 9031-9042 (“Matching Payment Act”). 

The Commission answered that he was not eligible. 

While the Commission may not “appraise candidates’ good faith, honesty, 

probity or general reliability when reviewing the agreements and other 

forward-looking commitments required” by the Matching Payment Act, see 

LaRouche v. FEC, 996 F.2d 1263, 1269 (D.C. Cir. 1993), situations may exist 

in which, “without assessment of subjective candidate intent, the Commission 

might conceivably withhold funds despite formal compliance with the 

statutorily expressed criteria.” Id. Clear and self-avowed constitutional 

ineligibility for office is one of the few instances where the Commission’s 

exercise of its discretion to withhold funds is appropriate. 

Case 1:11-cv-02189-EGS Document 8 Filed 02/27/12 Page 3 of 15
3

AO 2011-15 at 4. The Commission then opined that “[b]ecause Mr. Hassan has clearly stated 

that he is a naturalized citizen of the United States, and not a natural born citizen under the 

constitutional requirement in Article II, Section 1, Clause 5, the Commission concludes that Mr. 

Hassan is not eligible to receive matching funds.” Id.1

 

 In a separate lawsuit, Hassan sought direct judicial review of AO 2011-15 before the 

D.C. Circuit. See Hassan v. FEC, No. 11-1354, slip op. at 1 (D.C. Cir. Feb. 10, 2012) (per 

curiam). The court dismissed the petition and explained that it “does not have jurisdiction to 

review directly the Federal Election Commission’s advisory opinion” issued pursuant to 2 U.S.C. 

§§ 437d and 437f. Id.

B. Federal Election Commission 

The Commission is the independent agency of the United States government with 

exclusive jurisdiction over the administration, interpretation, and civil enforcement of FECA and 

the two statutes that provide public funds for presidential campaigns. The Matching Payment 

Act provides partial federal financing for the campaigns of presidential primary candidates who 

choose to participate and who satisfy certain eligibility criteria. See 26 U.S.C. §§ 9031-9042. 

One of those criteria requires a candidate to raise at least $5,000 in contributions from 

residents of at least 20 States, in increments of $250 or less. See 26 U.S.C. § 9033(b)(3)-(4). 

The Fund Act provides optional public funding to the campaigns of eligible candidates in 

the general election for the presidency according to the percentage of the popular vote the 

candidate’s party received in the prior election. 26 U.S.C. §§ 9001-9013. Parties that receive 

more than 25% of the vote are considered “major” parties and their candidates receive the largest 

subsidy. 26 U.S.C. §§ 9002(6), 9004(a)-(c). Parties that receive between 5% and 25% of the 

 

1 The Commission had earlier concluded that Hassan was a “candidate” for purposes of 

FECA. See AO 2011-15 at 2-3. 

Case 1:11-cv-02189-EGS Document 8 Filed 02/27/12 Page 4 of 15
4

vote are considered “minor” parties and their candidates receive a lesser subsidy, proportionate 

to the number of votes received in the preceding presidential election. 26 U.S.C. §§ 9002(7), 

9004(a). Candidates of parties receiving less than 5% of the vote receive nothing. See 26 U.S.C. 

§§ 9002(7)-(8), 9004(a). Only candidates of a political party are eligible for payments. 

26 U.S.C. § 9003(a). See generally Buckley v. Valeo, 424 U.S. 1, 85-90 (1976). 

The Fund Act provides for actions to construe it to be heard by a three-judge panel in 

accordance with the provisions of 28 U.S.C. § 2284, with direct appeal to the Supreme Court. 

See 26 U.S.C. § 9011(b). The Commission has opposed Hassan’s application for a three-judge 

court in this case, however, because such applications should be denied when the case does not 

present a substantial question or when the complaint fails to present an Article III case or 

controversy. See FEC’s Opp. to Pl’s. Appl. for Three-Judge Ct. at 3-7 (Docket No. 4). 

C. Natural Born Citizen Eligibility Requirement 

A letter in 1787, from John Jay to George Washington, the presiding officer of the 

constitutional convention, explained that the constitution should “‘declare expressly that the 

Command in chief of the american army shall not be given to, nor devolve on, any but a natural 

born Citizen.’” Jack Maskel, Cong. Research Srv., R 42097, Qualifications for President and 

the “Natural Born” Citizenship Eligibility Requirement, 6 & n.31 (Nov. 14, 2011) 

http://www.fas.org/sgp/crs/misc/R42097.pdf (quoting Max Farrand, Appendix A, LXVII at 61; 

Documentary History of the Constitution, IV, at 237). 

Accordingly, Article II, section I, clause 5, of the Constitution, 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. 

Case 1:11-cv-02189-EGS Document 8 Filed 02/27/12 Page 5 of 15
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II. ARGUMENT 

 The Court should dismiss Hassan’s complaint. First, he fails to demonstrate an Article III 

case or controversy. Second, his claim that the natural born citizen requirement has been 

abrogated and that the Fund Act is therefore unconstitutional fails as a matter of law. 

A. Standard of Review 

 Pursuant to Fed R. Civ. P. 12(b)(1), this Court must determine standing as a threshold 

jurisdictional requirement. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101-02 

(1998); Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). As the party 

invoking federal jurisdiction, Hassan bears the burden of establishing each element of standing. 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Khadr v. United States, 529 F.3d 1112, 

1115 (D.C. Cir. 2008). To determine whether it has jurisdiction over a claim, the Court may 

consider materials outside the pleadings. Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1107 

(D.C. Cir. 2005); Coal. For Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 

2003). 

Pursuant to Fed. R. Civ. P. 12(b)(6), dismissal of a complaint is appropriate where, 

accepting the complaint as true and drawing all reasonable inferences in the plaintiff’s favor, the 

complaint fails as a matter of law to state a claim on which relief can be granted. Bell Atl. Corp. 

v. Twombly, 550 U.S. 544, 558 (2007) (holding dismissal appropriate “when the allegations in a 

complaint, however true, could not raise a claim of entitlement to relief” (citation omitted)); 

Kassem v. Wash. Hosp. Ctr., 513 F.3d 251, 253 (D.C. Cir. 2008) (citing Erickson v. Pardus, 551 

U.S. 89, 93 (2007)). However, “the Federal Rules do not require courts to credit a complaint’s 

conclusory statements [made] without reference to its factual context.” Ashcroft v. Iqbal, 556 

U.S. 662, __, 129 S. Ct. 1937, 1954 (2009). 

Case 1:11-cv-02189-EGS Document 8 Filed 02/27/12 Page 6 of 15
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B. Hassan Does Not Have Standing or Present a Ripe Controversy 

Hassan fails to demonstrate a case or controversy within the meaning of Article III. He 

alleges injury based on his ineligibility for public funding under the Fund Act for his general 

presidential election campaign (see Compl. ¶¶ 24-27). But under that statute, only “the 

candidates of a political party” can receive public funding. 26 U.S.C. § 9003(a). Hassan has not 

alleged in his complaint that he is the candidate of any political party, that he seeks to become 

the candidate of any political party, or that there is any imminent chance that he might become 

such a candidate. Hassan’s campaign materials, as posted on his campaign’s website, also fail to 

show that he has sought to be the nominee of any political party. See Abdul K. Hassan, Esq. for 

President, http://www.abdulhassanforpresident.com/ (last visited Feb. 23, 2012).2

 Standing requires that “(1) [Hassan] has suffered an ‘injury in fact’ that is (a) concrete 

and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is 

fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to 

merely speculative, that the injury will be redressed by a favorable decision.” Friends of the 

Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-181 (2000) (citing Lujan, 504 U.S. 

at 560-561). Hassan fails all three prongs. Because he does not allege that he is seeking the 

nomination of a political party or has taken any steps to become any party’s nominee (such as 

 

2

 In support of his motion for a three-judge court, Hassan argued that he would seek the 

nomination of the Democratic Party. Pl.’s Reply in Support of Mot. for Three-Judge Ct. at 22 

(Docket No. 6). However, he has not alleged this fact in his complaint or alleged that he has 

taken any steps that would support such an allegation. “It is a long-settled principle that standing 

cannot be inferred argumentatively from averments in the pleadings, but rather must 

affirmatively appear in the record. And it is the burden of the party who seeks the exercise of 

jurisdiction in his favor, clearly to allege facts demonstrating that he is a proper party to invoke 

judicial resolution of the dispute.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) 

(citations and internal quotation marks omitted). In particular, “‘the necessary factual predicate 

may not be gleaned from the briefs and arguments themselves[.]’” Id. at 235 (quoting Bender v. 

Williamsport Area School Dist., 475 U.S. 534, 547 (1986)). 

Case 1:11-cv-02189-EGS Document 8 Filed 02/27/12 Page 7 of 15
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competing in any state primaries), he has alleged no imminent or concrete injury-in-fact caused 

by the Fund Act that could be redressed by a favorable court ruling. Indeed, Hassan has done 

little more than announce that he is running for President, post information on a website, and file 

lawsuits.3

 (See Compl. ¶ 13-22.) And his allegation that he “intends to continue his current 

campaign without interruption until the next presidential elections in 2016” (Compl. ¶ 14) 

suggests that his intentions do not depend upon securing the nomination of any political party — 

thus further undermining any possible argument that he suffers a concrete injury caused by the 

Fund Act. 

 Moreover, to the extent that Hassan’s campaign is currently incurring harm, he has not 

alleged any concrete facts showing that the natural born citizenship provision or the Fund Act, 

rather than some other factor, has caused his alleged harm. For example, his complaint contains 

no allegation that any potential voters, volunteers, or political parties are holding back their 

support because of Hassan’s status as a naturalized citizen. As the D.C. Circuit has noted, “[t]he 

endless number of diverse factors potentially contributing to the outcome of . . . elections . . . 

forecloses any reliable conclusion that voter support of a candidate” is attributable to any one 

factor. Winpisinger v. Watson, 628 F.2d 133, 139 (D.C. Cir. 1980). 

 Although Hassan alleges that his “chances of becoming the nominee of a major political 

party [are] destroyed” and that his “chances of winning the presidency” are greatly diminished 

(Comp. ¶ 26), such conclusory allegations are nothing more than speculation about potential 

future injury, not particularized facts about actual or imminent harm that constitutional standing 

 

3

 See Hassan v. North Carolina, No. 11-720 (E.D.N.C. filed Dec. 9, 2011); Hassan v. 

McCulloch, No. 11-72 (D. Mont. filed Dec. 8, 2011); Hassan v. Colorado, No. 11-3116 

(D. Colo. filed Nov. 30, 2011); Hassan v. Iowa, No. 11-574 (S.D. Iowa filed Dec. 1, 2011); 

Hassan v. New Hampshire, No. 11-552 (D.N.H. filed Nov. 29, 2011). 

 

Case 1:11-cv-02189-EGS Document 8 Filed 02/27/12 Page 8 of 15
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requires. See Lujan, 504 U.S. at 564 n.2 (future injury must be “at least imminent,” in the sense 

that it is “certainly impending”) (internal quotation marks omitted; emphases in original); 

Hassan v. United States, No. 10-2622, 2011 WL 2490948, at *2 (2nd Cir. June 21, 2011) 

(holding, in a case raising substantially the same arguments, that Hassan lacked standing because 

of failure to “allege with any specificity how the natural born citizen requirement has already 

injured him or is likely to injure him in the immediate future”), cert. denied, 2012 WL 33325 

(U.S. Jan. 9, 2012) (No. 11-507). “[T]he underlying purpose of the imminence requirement is to 

ensure that the court in which suit is brought does not render an advisory opinion in ‘a case in 

which no injury would have occurred at all.’” Animal Legal Def. Fund v. Espy, 23 F.3d 496, 500 

(D.C. Cir. 1994) (quoting Lujan, 504 U.S. at 564 n.2). 

 For many of the same reasons, Hassan also fails to present a controversy ripe for judicial 

intervention. “‘[A] claim is not ripe for adjudication if it rests upon ‘contingent future events 

that may not occur as anticipated, or indeed may not occur at all.’” Gates v. Syrian Arab 

Republic, 646 F.3d 1, 4 (D.C. Cir. 2011) (quoting Texas v. United States, 523 U.S. 296, 300, 

(1998)). Hassan presents no allegation “of an actual or imminent [violation] sufficient to present 

the constitutional issues in clean-cut and concrete form.” Renne v. Geary, 501 U.S. 312, 313 

(1991) (internal quotation marks omitted). 

Whether Hassan will ever be in a position to consider the option of accepting public 

funds under the Fund Act to further his general election campaign to be President is speculative 

at best. To become eligible, he must first become the nominee of a major or minor party that has 

previously received, respectively, 25% or 5% of the vote in a preceding presidential election. 

See supra pp. 3-4. Asking the Court to opine now on whether the Fund Act would be 

unconstitutional as applied to him in the event that he might in the future become such a party 

Case 1:11-cv-02189-EGS Document 8 Filed 02/27/12 Page 9 of 15
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nominee is exactly the kind of abstract disagreement that the ripeness doctrine was designed to 

prevent the courts from adjudicating prematurely. The events that would need to unfold before 

Hassan could consider applying for money under the Fund Act are far too remote to present a 

ripe controversy under Article III.4

 

 In sum, because Hassan lacks standing and has brought this case prematurely, the Court 

should dismiss his complaint for lack of jurisdiction.

B. Hassan Fails to State a Claim Because the Natural Born Citizen 

Requirement Has Never Been Repealed 

 Hassan’s challenge to the Fund Act rests on his argument that the national born citizen 

requirement for the presidency has been implicitly repealed by the Fifth and Fourteenth 

Amendments (see Compl. ¶ 32). The argument fails as a matter of law. Nothing in those 

amendments makes any explicit or implicit reference to the Natural Born Citizen Clause in 

Article II, section I, clause 5, of the Constitution. 

Nearly 100 years after the ratification of the Fourteenth Amendment, the Supreme Court 

explained that “[w]e start from the premise that the rights of citizenship of the native born and of 

the naturalized person are of the same dignity and are coextensive. The only difference drawn 

by the Constitution is that only the ‘natural born’ citizen is eligible to be President. Art. II, § 1.” 

 

4 Indeed, this case is far less ripe than the dispute before the Supreme Court in Renne, 

where the plaintiffs had a history of engaging in the conduct that the state constitution at issue 

prohibited; the challenged provision prohibited political parties from endorsing candidates in 

local, nonpartisan elections. 501 U.S. at 314. Even though the political parties had endorsed 

such candidates in recent elections and generally alleged that they wished to do so in the future, 

the Court determined that the case was not ripe because, among other reasons, none of the 

plaintiffs alleged a concrete plan to endorse any particular candidate in future elections. Id.

at 321. See also Robinson v. Bowen, 567 F. Supp. 2d 1144, 1147 (N.D. Cal. 2008) (denying 

preliminary injunction seeking to remove Senator McCain from ballot based on his birth in the 

Panama Canal Zone, stating that “[j]udicial review — if any — should occur only after the 

electoral and Congressional processes have run their course”) (citing Texas v. United States, 

523 U.S. at 300-02). 

Case 1:11-cv-02189-EGS Document 8 Filed 02/27/12 Page 10 of 15
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Schneider v. Rusk, 377 U.S. 163, 165 (1964) (emphasis added). The Court emphasized that 

although rights of citizenship derive from the Fourteenth Amendment, the Amendment left intact 

the distinction between the rights of natural born and naturalized citizens regarding eligibility to 

be President: “While the rights of citizenship of the native born derive from § 1 of the 

Fourteenth Amendment and the rights of the naturalized citizen derive from satisfying, free of 

fraud, the requirements set by Congress, the latter, apart from the exception noted [i.e., the 

natural born requirement for the Presidency], becomes a member of the society, possessing all 

the rights of a native citizen, and standing, in the view of the constitution, on the footing of a 

native.” Id. at 166 (emphasis added; internal quotation marks omitted).

The Court’s decision in Schneider was consistent with repeated, earlier rulings by the 

Court affirming the continuing validity of this eligibility requirement. See Knauer v. United 

States, 328 U.S. 654, 658, (1946) (explaining that naturalized citizenship “carries with it all of 

the rights and prerogatives of citizenship obtained by birth in this country ‘save that of eligibility 

to the Presidency’”); Baumgartner v. United States, 322 U.S. 665, 673-674 (1944) (holding that 

“[u]nder our Constitution, a naturalized citizen stands on an equal footing with the native citizen 

in all respects save that of eligibility to the Presidency”); Luria v. United States, 231 U.S. 9, 

22-23 (1913) (same). This line of Supreme Court precedent is anchored in principles dating back 

to the nation’s very founding. See Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 

827-28 (1824) (Justice John Marshall explaining that a naturalized citizen “is distinguishable in 

nothing from a native citizen, except so far as the constitution makes the distinction.”) (emphasis 

added)).

 Hassan can point to no specific language in the Fifth or Fourteenth Amendments, or to 

any case interpreting those amendments, suggesting that they have abrogated the express natural 

Case 1:11-cv-02189-EGS Document 8 Filed 02/27/12 Page 11 of 15
11

born citizen requirement for serving as President. See generally Hassan v. United States, No. 

08-938, slip op. at 3-7 (E.D.N.Y. June 15, 2010), aff’d on other grounds, 2011 WL 2490948 

(2nd Cir. June 21, 2011); John Hart Ely, Interclausal Immunity, 87 Va. L. Rev. 1185, 1199 

(2001) (explaining that “[t]he Constitution says in no uncertain terms that each state is to have 

two Senators and the President is to be a native-born citizen, and no provision remotely intended 

or fairly read to repeal either of these provisions has since been enacted”).5

 Nor can Hassan can point to authority for abrogating a constitutional provision by mere 

implication, and even implicit repeals of statutes are highly disfavored. Posadas v. Nat’l City 

Bank of N.Y., 296 U.S. 497, 503 (1936) (“Where there are two acts upon the same subject, effect 

should be given to both if possible.”). See also Nat’l Ass’n of Home Builders v. Defenders of 

Wildlife, 551 U.S. 644, 662 (2007) (“[R]epeals by implication are not favored and will not be 

presumed unless the intention of the legislature to repeal [is] clear and manifest.”) (internal 

quotation marks and citations omitted; alteration in original). 

 Even if a constitutional provision could be repealed by mere implication, there is no basis 

for an implied repeal here. Contrary to Hassan’s contention, the Equal Protection Clause did not 

 

5 When confronted with potentially conflicting constitutional provisions, the courts’ first 

task is to reconcile them. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 393 (1821) (noting 

that “the duty of the Court” is “to construe the [C]onstitution as to give effect to both 

provisions”). On the one occasion in which the Supreme Court held that the Fourteenth 

Amendment had partially abrogated the Eleventh Amendment immunity of states, it relied on 

explicit language to that effect. See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). As the Court 

explained, the Fourteenth Amendment includes sections that “by their own terms embody 

limitations on state authority.” Id. at 456 (emphasis added). That is, Section 1 of the Fourteenth 

Amendment includes an explicit limit on states’ power to deprive citizens of certain rights, and in 

Section 5 “Congress is expressly granted authority to enforce ‘by appropriate legislation’ the 

substantive provisions of the Fourteenth Amendment.” Id. (emphasis added). In contrast, 

although Section 3 of the Fourteenth Amendment addresses eligibility for federal office by 

restricting former members of the Confederacy from holding such office (absent a waiver by a 

two-thirds vote of Congress), the Amendment’s absolute silence concerning the Natural Born 

Citizen Clause forecloses any possible inference that it was meant to abrogate the natural born 

eligibility requirement for the presidency. 

Case 1:11-cv-02189-EGS Document 8 Filed 02/27/12 Page 12 of 15
12

remove by implication all distinctions between natural born and naturalized citizens.6

 As 

explained above, cases decided after the ratification of the Fourteenth Amendment have 

acknowledged this constitutional distinction among citizens. See Schneider, 377 U.S. at 165-66; 

Knauer, 328 U.S. at 658; Baumgartner, 322 U.S. at 673. 

 Finally, the congressional debates at the time of the Fourteenth Amendment and the Civil 

Rights Act of 1866, 14 Stat. 27, do not mention any repeal of the natural born citizen 

requirement. For example, during the debates on the Civil Rights Act, Representative Raymond 

stated: 

There are only two classes of citizens, so far as I can detect, provided for in 

the Constitution of the United States. In the second article, I think, it is 

declared that none but a “natural born citizen” shall be President of the United 

States. That clause, and the one relating to naturalization, implying that there 

may be naturalized citizens, are the only two clauses designating the classes of 

citizens within the contemplation of the Constitution of the United States. 

Cong. Globe, 39th Cong., 1st Sess. 1266 (March 8, 1866). See also Remarks of Senator 

Johnson, Cong. Globe, 39th Cong., 1st Sess. 2893 (May 30, 1866) (“The Constitution . . . 

provides that no person shall be eligible to the Presidency of the United States except a natural- 

 

 

6

 The logical implications of Hassan’s claim further demonstrate its weakness, because his 

theory appears to have no limiting principle and would suggest that the Fifth and Fourteenth 

Amendments have also abrogated other constitutional requirements for office based on length of 

citizenship. In particular, Article I, § 2, clause 2, and Article I, § 3, clause 3, require that 

naturalized citizens cannot be members of the House of Representatives or Senate until they have 

been citizens for, respectively, seven or nine years. Hassan can point to no legal authority 

suggesting that the Fifth and Fourteenth Amendments were intended to abrogate those 

citizenship requirements. 

Case 1:11-cv-02189-EGS Document 8 Filed 02/27/12 Page 13 of 15
13

born citizen of the United States . . .”).7

 Thus, neither the language of the Fourteenth 

Amendment nor contemporaneous legislative history supports Hassan’s argument that the 

Natural Born Citizen Clause has been repealed by implication. 

III. CONCLUSION 

For the foregoing reasons, the Court should dismiss plaintiff’s complaint for lack of 

subject matter jurisdiction or for failure to state a claim on which relief can be granted. 

Respectfully submitted, 

Anthony Herman (D.C. Bar No. 424643) 

General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

/s/ Greg J. Mueller

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

February 27, 2012 FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

 

 

7

 Proposals to repeal the natural born citizen requirement were made both before and after 

ratification of the Fourteenth Amendment. See Cong. Globe, 40th Cong., 2d Sess. 2526 (May 

18, 1868) (proposing amendment to Article II, § 1, providing that “no person, except a citizen of 

the United states, shall be eligible to the office of President....”); Cong. Globe, 41st Cong., 3d 

Sess. 538 (Jan. 17, 1871) (proposing to amend Presidential eligibility requirements to read: 

“Every person whether a natural-born or foreign-born citizen of the United States . . . shall be 

eligible to the office of President. . .”). Each of these proposals was defeated. 

Case 1:11-cv-02189-EGS Document 8 Filed 02/27/12 Page 14 of 15
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CERTIFICATE OF SERVICE 

 I certify that on this 27th day of February 2012, I caused to be filed electronically using 

this Court’s ECF system and sent via the ECF electronic notification system a true copy of the 

Federal Election Commission’s Opposition to Plaintiff’s Application for a Three-Judge Court on 

the following counsel: 

Abdul K. Hassan, 

215-28 Hillside Avenue 

Queens Village, NY 11427 

February 27, 2012 /s/ Greg J. Mueller

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

Case 1:11-cv-02189-EGS Document 8 Filed 02/27/12 Page 15 of 15