Thread: Barack Obama's citizenship questioned

A birth certificate from Hawaii costs $10 in person or $11.50 by internet.
I have mistakenly been saying $12, but it only costs $11.50.

Originally Posted by MinutemanCDC_SC

A birth certificate from Hawaii costs $10 in person or $11.50 by internet.
I have mistakenly been saying $12, but it only costs $11.50.

Well that 50 cents makes all the difference in the world! It fully explains why he refuses to produce it. The man has a fear of change.

Donofrio turned to wicked satire on his blog -- a take-off on the "That One" remark by McCain during the debates -- on Saturday.

His comments to posters who have posted to his blog is pessimistic about the chances of the surviving "natural born citizen" case (out of Connecticut) getting any kind of favorable reception on Monday. That is when the next list of cases considered in the Friday conference of Justices is posted as an "Orders List".

As was the situation when his own suit went to conference -- and found a Friday announcement on Dec 5th of 2 cases granted Certiorari while cases which were denied their relief (and the NJ case had asked for a "Stay") or short-form dispositions on Monday, Dec. 8th -- there was a Friday Dec. 12th announcement of a couple cases that would be heard (which did not include the CT case) and all the rest won't be posted until Monday Dec. 15th.

I've got about a dozen questions in my own mind about SCOTUS and how they "react" to petitions like these. These include:

• * the "political hot potato" nature of the lawsuits amid memories of 2000's Bush v. Gore drama;
  * unknowns about the procedural history which might have made the Justices feel that even if they accepted a case for certiorari (hearing; oral arguments) or action (a Stay on the electoral college?) they wouldn't be able to reach the "core issue" (which would allow them to define "natural born citizen" standards of eligibility, as applied to the candidates brought up in the cases) because a smaller "issue" of some kind might prevent it;
  * a question of whether the Court wants to be, or needs to be, the "last actor" in a series of events which finds the Electoral College voting Dec. 15th and the Congress opening and counting that vote in January. Eligibility challenges at those stages are still possible as part of the political process outlined by the Constitution, so maybe this is a situation of the cases reaching SCOTUS "too late" to allow for stay of the balloting date for the popular vote and "too early" in light of the other events not yet occurring.

As best I can tell from looking at the legalese, the Wrotnowski pleadings sought all manner of remedies to allow the Justices to "pick" -- a Stay, an issuance of a Writ of Mandamus or extraordinary Writ from SCOTUS itself, a conversion of Petition for Stay into a Writ of Certiorari, etc.

The Constitution, through the XXth Amendment to Article II and the earlier XIIth Amendment, certainly provides language calling for eligibility to be questioned, or it wouldn't mention "shall have failed to qualify" at all. Cornell Law does a nice job of laying out the Constitution as originally written and then hypertexting the clauses the provisions which were later amended for click-to-click review:

http://www.law.cornell.edu/constitution ... cleii.html

http://www.law.cornell.edu/constitution ... ntxii.html
Amendment XII

The electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

http://www.law.cornell.edu/constitution ... entxx.html

Amendment XX
Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Someone posting to the Donofrio blog mentioned a Rob Wittman, who appears to be the Virginia-1st District Representative in Congress. It wasn't clear if the poster just happens to live in that District and was going to contact him as a constituent, and "flag" the Natural Born Citizen issue to him, or whether he is someone else who might plan to raise an eligibility question when the session convenes to count the vote.

The link to docket to be following tomorrow, for entry of disposition by Justices' conference, is this one:

http://origin.www.supremecourtus.gov/docket/08a469.htm

If the case is denied as a matter the Supreme Court will entertain further, as Donofrio seems to expect, this is the link to follow, as it is updated with regular Monday Orders Lists.

http://origin.www.supremecourtus.gov/or ... court.html

A lot of people appear to feel stunned to find out about how the political parties are failing to "vet" the candidates (or covering up the known problems to eligibility with Senate Resolutions as "window dressing" for a gullible public), and how the Secretary of State offices are also failing to "vet" them because they rely on the political parties. This election shows that people need to get serious at the state level in getting laws or procedures created that demand a candidate turn over certified copies of papers pointing to his "bona fides" when he/she submits paperwork to be allowed to be placed on the ballot. It would probably only take legislative action in a few key states that are early-primary states to find that "bad news" (lack of eligibility) travels fast, and nips problem candidates in the bud if they don't pony up with documents.

Just to give an idea of how "bad" things are, consider this case out of California where someone who filed to get McCain off the ballot because he was ineligible. It is docketed here

http://dockets.justia.com/docket/court- ... id-206145/

Here is the ruling

http://docs.justia.com/cases/federal/di ... 206145/39/

The decision "waffles" about making a ruling about whether the 1937 law that cleared up the status of births to U.S. citizens in the military in Panama could have retroactively granted a "natural born" status, leaving it to another court on another day to definitively rule, while getting hopelessly lost in "citizenship at birth" notions derived from the 14th Amendment vs. "natural born citizen" which is a distinguishable standard in its own right, created prior in time by nearly a century. The decision is also dismissive of the plaintiff:

"Plaintiff is a mere candidate hoping to become a California elector pledged to a third-party candidate whose presidential prospects are theoretical at best."

It then goes on to state that the plaintiff should have no greater standing than an ordinary taxpayer or voter. (I don't know about California laws but the Donofrio blog has pleadings from the Connecticut case which show that candidates for office and electors have special statutory treatment under state law governing state courts that give them "standing" in election matters that might prompt a need to file litigation. Robinson sued in Federal Court in CA so all bets are off.)

The ruling then punts to the idea that ineligibility is a matter for arguing to the general public of voters (thank you, media, for covering that issue when McCain and Obama were not going to rat each other out before the voters because they both had problems ) and to the 12th and 20th Amendment as showing that the places to challenge qualifications are at the Electoral College and the Congress. And it states that judicial review is only appropriate after those events have occurred.

I have seen a specious argument that only a child with a U.S. citizen parent is a citizen. This is patently false, as that would eliminate every immigrant to the U.S. since 1787. The only persons who could claim U.S. citizenship would be those who had an ancestor who was a U.S. citizen at the time of the signing of the U.S. Constitution in 1787. Nonsense.

A very different argument is that only a person with only U.S. citizen parentage is a natural born citizen.

Originally Posted by MinutemanCDC_SC

I have seen a specious argument that only a child with a U.S. citizen parent is a citizen. This is patently false, as that would eliminate every immigrant to the U.S. since 1787. The only persons who could claim U.S. citizenship would be those who had an ancestor who was a U.S. citizen at the time of the signing of the U.S. Constitution in 1787. Nonsense.

A very different argument is that only a person with only U.S. citizen parentage is a natural born citizen.

Yeah that's pretty specious without some context. Immigrants go through a "naturalization" process, right? That creates citizenship right there. And for immigrant women, for many years in our history, the law said that marriage to a U.S. citizen "naturalized" the wife to become a U.S. citizen also. Also, it's clearly spelled out as one of the enumerated powers of the Legislative branch in the Constitution to create a "uniform rule of Naturalization." That means that Congress can pass statutes for immigrants to become citizens.

Where "legal purists" would differ relates to how the case of U.S. v. Wong Kim Ark might have gotten carried away in over-broadening the original intent of the 14th Amendment, thus giving rise to the anchor-babies phenomenon of the present.

At the time the 14th Amendment was debated in Congress before being sent out for ratification by the states, the author of the "jurisdiction clause" and the Chairman of the Senate Judiciary Committee clearly pointed to a situation where being born on U.S. soil of parents who were "aliens" did not create citizenship because such children could still be "subject to the jurisdiction" of the foreign country of which their parents were citizens. The Court in Wong Kim Ark failed to go back and explore and "uphold" that legislative history created in the debate by the authors of the 14th, ruling instead that the child of two "legal immigrant residents" in the U.S. (but not "citizens") had become a U.S. citizen by being born here. It was a bad ruling, imho, in light of the "original intent" of the 14th Amendment, and the Chief Justice dissented from the majority opinion.

A bunch of cases regarding citizenship which have been decided using (or abusing) the 14th Amendment which established the definition of a citizen as someone born or naturalized and subject to the jurisdiction of the U.S. (which the 14th Amendment's authors said was to be the exclusive jurisdiction of the U.S.) is linked here, starting with Wong

http://www.richw.org/dualcit/cases.html#Wong

Those are all about U.S. citizenship. Although one of the cases in the listing is Perkins v. Elg (1939) which also goes into "natural born citizen" and echoes the definition that Donofrio used.

Facts:

Mr. Chief Justice HUGHES delivered the opinion of the Court.

The question is whether the plaintiff, Marie Elizabeth Elg. who was born in the United States of Swedish parents then naturalized here, has lost her citizenship and is subject to deportation because of her removal during minority to Sweden, it appearing that her parents resumed their citizenship in that country but that she returned here on attaining majority with intention to remain and to maintain her citizenship in the United States.

Miss Elg was born in Brooklyn, New York, on October 2, 1907. Her parents, who were natives of Sweden, emigrated to the United States sometime prior to 1906 and her father was naturalized here in that year. In 1911, her mother took her to Sweden where she continued to reside until September 7, 1929. Her father went to Sweden in 1922 and has not since returned to the United States. In November, 1934, he made a statement before an American consul in Sweden that he had voluntarily expatriated himself for the reason that he did not desire to retain the status of an American citizen and wished to preserve his allegiance to Sweden.

In 1928, shortly before Miss Elg became twenty-one years of age, she inquired an American consul in Sweden about returning to the United States and was informed that if she returned after attaining majority she should seek an American passport. In 1929, within eight months after attaining majority, she obtained an American passport which was issued on the instructions of the Secretary of State. She then returned to the United States, was admitted as a citizen and has resided in this country ever since. [307 U.S. 325, 328] In April, 1935, Miss Elg was notified by the Department of Labor that she was an alien illegally in the United States and was threatened with deportation. Proceedings to effect her deportation have been postponed from time to time. In July, 1936, she applied for an American passport but it was refused by the Secretary of State upon the sole ground that he was without authority to issue it because she was not a citizen of the United States.

Ruling:

The cross petition of Miss Elg, upon which certiorari was granted is addressed to the part of the decree below which dismissed the bill of complaint as against the Secretary of State. The dismissal was upon the ground that the court would not undertake by mandamus to compel the issuance of a passport or control by means of a declaratory judgment the discretion of the Secretary of State. But the Secretary of State, according to the allegation of the bill of complaint, had refused to issue a passport to Miss Elg 'solely on the ground that she had lost her native born American citizenship.' The court below, properly recognizing the existence of an actual controversy with the defendants, declared Miss Elg 'to be a natural born citizen of the United States' and we think that the decree should include the Secretary of State as well as the other defendants.

Bottom line: Miss Elg was born in the U.S. At the time she was born her immigrant Swedish parents were already naturalized as U.S. citizens. Therefore "natural born citizen."

The formal definition of Natural Born Citizen in the 1758 "Law of Nations", written by the Swiss Emerich de Vattel, and used as a reference point by the Framers in drafting the Constitution, sets up those conditions. The fact that the Framers refered to the Treatise can be seen in this letter from Ben Franklin to a French diplomat (Dumas) who had sent a gift of some additional copies of the "Law of Nations" to Franklin.

http://lcweb2.loc.gov/cgi-bin/ampage?co ... linkText=1


Vattel's definition in "Law of Nations":

§ 212. Citizens and natives.

The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.

Keep in mind that the references to the father were in a context of the 1700's where it was not unusual for the act of marriage to find a woman taking on the citizenship (by "automatic naturalization") of the husband, particularly if married in the husband's country. When families immigrated to America in the 1800's up through the early 1900's, too, it was usually the father who went through the steps toward naturalization and then the wife and minor children got naturalized along with him. I think that was the situation from about 1855 through at least 1922. It would have covered the parents in the Elg case.

Originally Posted by Emerich Vattel

[I]n order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.

This implies that a person born on soil under U.S. jurisdiction is not a U.S. citizen by birth if his father is a foreigner. That would absolutely, positively put an end to anchor babies. But that is the law of nations, not the law of the United States, which is:

8 USC 12 § 1401

§ 1401. Nationals and citizens of United States at birth

The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof;

(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five ["ten" between 1952 and 1986] years, at least two ["five" between 1952 and 1986] of which were after attaining the age of fourteen years:

• Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person
  
  (A) honorably serving with the Armed Forces of the United States, or
  
  (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and

(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.


Enough about citizens. Now, back to the discussion of natural born citizens.

What a mess

Originally Posted by vmonkey56

What a mess

True. But it's ex-Sen. Obama's mess, not our mess. And that's a good thing.

Here's the REAL mess. Reading comment exchanges in Donofrio's blog, it comes to light that he's thrown in the towel because he believes that the Supreme Court clerk in charge of "Stays" -- an individual named Dan Bickell -- who gave him so much hassle and also gave a hassle to the CT petitioner Wrotnowski must have been "acting on orders." As in, FROM HIGHER UPS.

For people who've been following those cases for awhile, they'll recall that the Stays Clerk in D.C. initially told Donofrio that he shouldn't "bother to file" his petition -- which was on immediate appeal from the NJ Supreme Court -- because Justice Souter would deny it. When informed that Donofrio would then resubmit to a Justice "of his own choosing", and it would be Justice Thomas, the Stays Clerk said that Thomas would also deny it. It's just UNHEARD OF for a clerk who is supposed to simply perform an "intake function" on a Petition for Stay (which is an "emergent matter" meaning A.S.A.P.) and rush it to the proper Justice right away, to instead go throwing off a bunch of ATTITUDE and HASSLE. Acting like the clerk is the judge and is prepared to refuse a petition. He's a Stays Clerk, not a Justice.

That's when Donofrio got busy in the Blogosphere to "get the word out" and urge people to start phoning the Supreme Court about the case and their calls to the Clerk made him aware that a lot of eyes were watching.

Then, the hassle continued. The Clerk kept docketing it wrong. It went through THREE different initial docketings, with argumentation between Donofrio and the Clerk until he got it RIGHT. (The docket is what "characterizes" the nature of the pleading.) By that point, the calendar had slipped from Nov. 3rd (day before election) to Nov. 6th AND the initial refusal from Souter was obviously BACKDATED. And, despite the Supreme Court rules saying that communication to a petitioner is supposed to be PROMPT when there's been a filing for a "Stay" -- the communication was snail-mailed (although Donofrio was "on top" of things and got information orally because he was pro-active). That's when there was the resubmission to Justice Thomas and the consequent referral to Conference.

Then, Donofrio went to help Cort Wrotnowski with his own separate CT case so it could get to the Supreme Court. That separate Petition for Stay was shipped off and when Cort phoned to check up on it, that's when he was informed it had been sent out for ANTHRAX testing and would not be back to the Court until 7 days later. (I don't know if the representation was that all mail was being sent out for such testing or just that particular piece of mailing from Connecticut.) So Cort drove down to D.C. from CT to make the filing IN PERSON either later the same day or the very next.


Here's something he posted in his comments section:

From a Blog Commenter: Leo,
Well, thank for what you have done. If you are admitting total defeat, it’s just too painful to keep reading your comments, which indicate you have no more solidarity with the rest of us. Yes, thanks for what you have done, but frankly, what you’re doing right now makes me very angry.

From Donofrio:
I understand. I do. It's the only way I can warn you properly. Being a lawyer, and having dealt with clerks, judges, attorneys... I never in my life expected anything like what happened in these cases from the lower courts right on up to the SCOTUS... the disgusting behavior [of] the judicial branch is something I have no frame of reference for.

Now it's finally dawned on me. SCOTUS sicked Bickell on Cort and I like a trained dog. Why? because they didn't want to answer to history and we forced them to do so. The blood is on their hands now. I did ALL I could possibly do within the law. Now all I have left to fight with is the truth. I'm sorry if the truth upsets you. But that does not stop the truth from being true. You should be mad, but not at me.

So, let's see if we're reading the tea leaves correctly here.

We've got a CEO-USA who's so belittled in the international community that he had an Iraqi reporter throw not just one but TWO shoes at him, causing him to duck, at a press conference in Baghdad.

We've got a Next-CEO-USA who isn't "natural born citizen" eligible and has Chicago Crud flying all around him right now.

We've got a Congress that has spent the once mighty USA into the land of Next Third World Tinpot Debtor To Rest of World.

We've got two major political parties who BOTH (and probably quite knowingly at their upper echelons) gave us Presidential candidates who were INELIGIBLE under the Constitution.

And, we've now got the Supreme Court basically saying: "Wait. You mean we're the ONLY GROWN-UPS left in fricken' Washington, DC? Well, sorry, we're not taking these NATURAL BORN cases and bringing order to the legal affairs of this nation that all the POLITICIANS have screwed up. We want to play in the sandbox too. Buh-bye!"

Donofrio is convinced that the tactic was to delay and stall and stave off these "natural born" cases, so the Court wouldn't be put in a position of DOING ITS JOB and defending the CONSTITUTION by correctly INTERPRETING it.

As expected, SCOTUS has denied the Wrotnowski petition.

http://www.supremecourtus.gov/orders/co ... 508zor.pdf