Posted on 03/25/2010 6:53:40 AM PDT by opentalk
Obama’s Straw Man Defense - Kerchner v. Obama, Article II, eligibility
Kerchner case will test Third Circuit court’s adherence to the Constitution
Obama's 16 Different Social Security Numbers
Power to the People! (President is being allowed to hide his past from “we the people”)
Ryder v U.S. (151 US 177)
None of that is the issue: we do have a responsibility to defend the Constitution. If there is a “there” there, then for the Constitution’s sake, it should be pursued.
That said, I think your point goes to this: asking a court, any court, to declare the President of the United States ineligible to serve is a pretty big bite. And unnecessary, in my view. If instead these plaintiffs asked the court (or Court) to find that Congress *lacked adequate procedures to safeguard the operation of the Constitution’s eligibility requirements,* that’s not so much of a stretch.
Then the Congress would have to go back and pass a law explictly stating how and to what standards it was going to evaluate the eligibility of president-elects, or even presidential nominees. They would have to set out a fact-finding procedure and even a remedy. Right now there is no prescribed process for vetting candidates. It is left to the parties, apparently. And if they say their guy is good to go, Congress doesn’t seem to question it.
It seems like it would be a good thing to get this cleared up for the future.
This sort of thing is counterproductive to the legal arguments.
I agree. As I see it, most of these lawsuits (though I admit to not wading through the pleadings in great detail) bite off way too much in that they ask the court to be the first fact-finder. A better strategy might be to plead the facts show that nowhere in the process is the constitutional eligibility standard adquately safeguarded. IOW, that these facts show that the process is not sufficient to keep someone who may be ineligible from being seated as president. The court would not actually have to find Obama ineligible.
Then the Congress would have to come up with a standard, a process, and a procedure for review and a remedy. However, it would help if the Court would tell us upfront explicitly what constitutes "natural born citizenship."
The standing issue, sorry to say, is one of those judicial doctrines that ends up being a simple way to expand or contract jurisdiction based on whether or not the Court wants to get involved. Of course the SCOTUS would not want to rule on a president's eligibility, especially a president as unpopular as Obama. If they could see their way to rule on the sufficiency of the legislative effort, if any, to safeguard the constitutional eligibility requirement, they'd be protecting the Constituion and still showing great deference to the legislature.
But, if I'm not mistaken, it asks the court to declare Obama ineligible. IMO, the remedy should be that the question is returned to the legislative branch for the Congress to determine a legal process and procedure for determining if a president-elect is "fully qualified" under the Constutition.
Then the court can review that law and determine if it violates the Constitution or is an appropriate exercise of legislative authority and discretion.
This has got to be about the future now. We cannot continue to have this loosey-goosey non-process for determining who is eligible to serve as President.
As I have been advocating on this thread, I see this as the way to go: instead of going so far as to ask a court to declare Obama as ineligible, it seems to me it would be better to focus on getting the court to find that the process to "fully qualify" the president-elect -- ANY president-elect -- is not sufficient to enforce the Constitution's eligibility requirements. And, therefore, the Congress must fix the process.
Part of making that argument is, in fact, the fact that Congress held hearings on McCain's eligibility. IOW, they demonstrated that they have some understanding that they have a duty to enforce constitutional standards on this point. But at the same time, their failure to hold hearings on Obama's eligibility, when he had an equal question based on the fact that his father was a British citizen, demonstrates Congress omission of review was arbitrary and capricious.
The court need to find Obama ineligible. It could simply find that the process doesn't safeguard the constitutional standard. The court could say in dicta that holding a hearing on the eligibility of a person born to two American citizens, but not on a person born to an American citizen and a foreign national, demonstrates that there is no coherent policy, and that this lack of procedure should be addressed by a law that would then be subject to judicial review.
link Obama birth certificate issue more urgent than ever:
--In America, leftists have been actively trying both to undermine and overthrow our country since at least the 1960s
--They would have to find a faux American, one that looked and sounded like the real thing, but whose allegiance to America was non-existent — perhaps someone who had lived in a Muslim country, studied the Koran, subscribed to Sharia law, and had lifelong relationships with Marxists and Communists and other America haters. Enter the man who calls himself Barack Obama.
--Just as mysterious is the question of who exactly backed this virtually unknown neophyte senator with the paper-thin résumé and almost non-existent voting record, this man who had lifelong associations with countless dubious-if-not-criminal friends and associates as well as political radicals.
--We now know the leftist billionaire financier George Soros was and is a major backer. And we've also learned that dozens of Clinton administration leftovers and elected officials, all of the hard left, as well as a number of hugely influential executives and bankers from AIG and Goldman Sachs were part of Obama's toxic brew. But how, you may ask, could these arch capitalists be leftists?
-- Like Soros, they fancy themselves Kings of the Universe, smarter than the average Joe and therefore destined to join a new American oligarchy in which the few rule and the many are under their collective thumbs.
Well how in Hell's Bells can some administrative schlub from the DNC or RNC know whether a person is constitutionally eligible to be President of the United States? The Supreme Court has never said one way or the other what a natural born citizen is or whether there is a difference between natural born citizens and citizenship acquired at birth because of the place of birth.
It's incredible that there is not universal outcry for clarity on this issue -- regardless of its impact on the Obama presidency.
Why hasn't Congress enacted a law defining who is a "natural born citizen" and setting out a procedure for "fully qualifying" a president-elect under the Constutition, as well as a remedy for failure to "fully qualify"? How would Congress, mindful of the Constitution, define a "natural born citizen"?
If Congress hasn't defined it and the SCOTUS hasn't defined it, again, how in Hell's Bells can schlubbie at the DNC tell me the eventual president-elect is "fully qualified" under the Constitution? Tell me again what definition he is using and why.
How can any court, including the Supreme Court, refuse to determmine whether the Congress has fulfilled its duty to ensure the president-elect is "fully qualified" when the Congress clearly has NO LEGAL STANDARD to apply in the first place.
The court should direct the Congress to come up with a law to govern how it evaluates whether a president-elect is "fully qualified" under the Constitution.
This is what amazes me about all this. It's not even about whether Obama is fully qualified. It's about HOW WOULD WE KNOW IF HE WAS OR WAS NOT? The answer -- because the DNC told me so -- is not satisfactory. And it should not satisfy the constitutional question, either.
P.S. If Congress has spoken explicitly on what constitutes natural-born citizenship, as opposed to mere citizenship or naturalized citizenship, and I missed it, then that law is subject to judicial review if it raises a question as to whether or not it comports with the meaning of natural-born citizenship intended under the Constitution.
The big plus would be if the court in this case grants Kerchner the ability to move forward with discovery.
"It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born. III. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established."
I agree with you on that. Reading the entire case, the Court repeatedly uses citizen and natural-born citizen interchangeably.
My interest in the eligibility question is that it has exposed how loose (vulnerable) the process for “fully qualifying” a president-elect is and how there is very little recourse for the people if the standard is not upheld.
There is no need for our system to suffer this potential constitutional jeopardy. Congress could enact a law defining the procedures for “fully qualifying” a president-elect, including a standard and a remedy. If this garbage can be avoided in the future, why not?
The law simply isn't clear on this point. While the SCOTUS seemed to treat "natural-born citizenship" and "citizenship" interchangeably in Wong Kim Ark, the counter-argument to that is that that was a case about a child's inheritance, not about who is eligible to be President of the United States. IOW, it's likely the Court would have to accept an argument that, at least as to the President, the Founders intended the Constitution to require something beyond citizenship acquired merely by place of birth.
It's not impossible to make or have such an argument accepted. There is particular evidence that the Founders did not want those of dual citizenship, or -- based on their parents' citizenship -- divided allegiance, installed in the presidency. And so on. But the bottom line is that the Supreme Court has never actually reviewed the issue of who is a "natural-born citizen" in the context of what the Founders were intending as to the presidency.
The decision in Wong Kim Ark was careful not to call the plaintiff a natural born citizen, plus it emphasizes that the child was considered a citizen by virtue of the 14th amendment in part because the parents were permanent U.S. residents. This was not the case for Obama’s father. Wong Kim Ark also echoed Minor V. Happersett’s use of the Vattel definition of natural born citizen: born of citizen parents on native soil. That’s two strikes against Obama.
On the other hand, a couple of fact distinctions pop out. For one thing, the entire discussion on aliens has to do with those who were under the "allegiance/protection" to the Sovereign by virtue of "residing" in the dominions. It's not clear that Obama's father was a resident alien, much less that he had domicile in the U.S. at the time of Obama's birth.
IOW, there may be an argument that his connection to the U.S. was more tenuous than the connection explicitly contemplated between the alien and the British crown that conferred subject-hood on offspring.
Also, did the British have a status comparable to our naturalized citizenship status? If not an explicit process, it may be argued that this recognizes a de facto naturalization process. Again, Obama's father never was a de facto naturalized American citizen.
Finally, the Dicey passage you responded to makes clear that, at the time the Constitution was written, citizenship passed from the father. And, IIRC, it's been established that in 1961, the child of a British subject was also a British subject at birth. While U.S. laws by 1961 may have allowed citizenship to be determined by the mother, I suppose there still may be a question of whether the constitutional provision can be "modernized" without question, or whether the descent of citizenship from the father (or only from the father) had some material purpose bearing on a president's "full qualification" that must be preserved.
In particular, what of the case where the father does not have any connection with the U.S.? What if, in Wong Kim Ark, the mother was a resident alien of the U.S. but the father had at all times been a resident of China? And China also recognized the child as a Chinese citizen? And this child did not just want the usual acoutrements of U.S. citizenship, he was elected President of the United States? I don't think caselaw necesssarily answers the question of whether a statute can come along and make the father's citizenship completely irrelevant to a president-elect's "full qualification.".
Finally, and this is o/t in some ways, it's interesting to note that the reason for the British rule on citizenship was to build and control the Empire. It was animated purely by the need to have as many people as possible in far-flung places loyal to the Crown and subject to the authority of the Crown (and subscription!). Empire-building and law and order. Those rationales have nothing to do with who the Founders thought might or might not be suitable to serve as POTUS.
Thanks for confirming my position
We therefore hold that the Court of Military Appeals erred in according de facto validity to the actions of the civilian judges of the Coast Guard Court of Military Review. Petitioner is entitled to a hearing before a properly appointed panel of that court. The judgment is reversed, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
http://www.law.cornell.edu/supct/html/94-431.ZO.html
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.