Thomas Breaks Tradition: Forces Supreme Court to Look at Obama Citizenship Case

THE AFRO-AMERICAN NEWSPAPERS ^ | 12/3/08 | James Wright, AFRO Staff Reporter

[BP2]

 

U.S. Associate Supreme Court Justice Clarence Thomas

By James Wright
AFRO Staff Writer

(December 3, 2008) - In a highly unusual move, U.S. Associate Supreme Court Justice Clarence Thomas has asked his colleagues on the court to consider the request of an East Brunswick, N.J. attorney who has filed a lawsuit challenging President-elect Barack Obama’s status as a United States citizen.

Thomas’s action took place after Justice David Souter had rejected a petition known as an application for a stay of writ of certiorari that asked the court to prevent the meeting of the Electoral College on Dec. 15, which will certify Obama as the 44th president of the United States and its first African-American president.

The court has scheduled a Dec. 5 conference on the writ -- just 10 days before the Electoral College meets.

The high court’s only African American is bringing the matter to his colleagues as a result of the writ that was filed by attorney Leo Donofrio. Donofrio sued the New Jersey Secretary of State Nina Wells, contending that Obama was not qualified to be on the state’s presidential ballot because of Donofrio’s own questions about Obama citizenship.

Donofrio is a retired lawyer who identifies himself as a “citizen’s advocate.” The AFRO learned that he is a contributor to naturalborncitizen.wordpress.com, a Web site that raises questions about Obama’s citizenship.

Calls made to Donofrio’s residence were not returned to the AFRO by press time.

Donofrio is questioning Obama’s citizenship because the former Illinois senator, whose mom was from Kansas, was born in Hawaii and his father was a Kenyan national. Therefore, Donofrio argues, Obama’s dual citizenship does not make Obama “a natural born citizen” as required by Article II, Section I of the U.S. Constitution, which 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…”

...to prevent the meeting of the Electoral College on Dec. 15, which
will certify Obama as the 44th president of the United States...

Donofrio had initially tried to remove the names not only of Obama, but also the names of Republican Party presidential nominee John McCain and Socialist Workers’ Party Roger Calero from appearing on the Nov. 4 general election ballot in his home state of New Jersey.

McCain was born in the Panama Canal Zone when it was a U.S. possession. Calero would be ineligible to be president because he was born in Nicaragua.
After his efforts were unsuccessful in the New Jersey court system, he decided to take his case to a higher level.

On Nov. 6, Souter denied the stay. Donofrio, following the rules of the procedure for the Supreme Court, re-submitted the application as an emergency stay in accordance to Rule 22, which states, in part, that an emergency stay can be given to another justice, which is the choice of the petitioner.

Donofrio’s choice was Thomas. He submitted the emergency stay to Thomas’s office on Nov. 14.  Thomas accepted the application on Nov. 19 and on that day, submitted it for consideration by his eight colleagues - known as a conference - and scheduled it for Dec. 5.

On Nov. 26, a supplemental brief was filed by Donofrio to the clerk’s office of the Supreme Court. A letter to the court explaining the reason for the emergency stay was filed on Dec. 1 at the clerk’s office.

Thomas’s actions were rare because, by custom, when a justice rejects a petition from his own circuit, the matter is dead. Even if, as can be the case under Rule 22, the matter can be submitted to another justice for consideration, that justice out of respect, will reject it also, said Trevor Morrison, a professor of law at Columbia University School of Law.

Morrison said that Thomas’s actions are once in a decade.  “When that does happen, the case has to be of an extraordinary nature and this does not fit that circumstance,” he said. “My guess would be that Thomas accepted the case so it would go before the conference where it will likely be denied. If Thomas denied the petition, then Donofrio would be free to go to the other justices for their consideration.  

“This way, I would guess, the matter would be done with.  Petitions of Donofrio’s types are hardly ever granted.”

Traditionally, justices do not respond to media queries, according to a spokesman from the Supreme Court Public Information Office.

Thomas was appointed to the Supreme Court by President George H.W. Bush in 1991 and has been one of its most conservative members.

Before his ascension to the court, he was appointed by Bush to the U.S. Circuit Court of Appeals for the District of Columbia. Earlier, he served as chairman of the Equal Employment Opportunity Commission - appointed by President Reagan - and worked various jobs under former Republican Sen. John Danforth.

It would take a simple majority of five justices to put Donofrio’s emergency stay on the oral argument docket. Because it is an emergency by design, the argument would take place within days.

Donofrio wants the court to order the Electoral College to postpone its Dec. 15 proceedings until it rules on the Obama citizenship. He is using the 2000 case Bush vs. Gore case as precedent, arguing that it is of such compelling national interest that it should be given priority over other cases on the court’s docket.

“The same conditions apply here,” Donofrio said in his letter to the court, “as the clock is ticking down to Dec. 15, the day for the Electoral College to meet.”

Audrey Singer, a senior fellow at Washington’s Brookings Institution, who is an expert on immigration, said that the Donofrio matter is “going nowhere.”

“There is no way that anyone can argue about whether Barack Obama is a citizen,” Singer said. “In this country, we have a system known as jus soli or birthright by citizenship. You are a citizen by being born on American soil and he (Obama) was born in Hawaii.”

Singer said that Donofrio’s argument that Obama’s father was a Kenyan national does not matter because citizenship is not based on parentage, but on where someone was born.

“This is the issue that some people have with illegal aliens in our country,” she said. “Children of illegal aliens, if they are born in the United States, are U.S. citizens. That is in the U.S. Constitution.”

 

[BP2]

Not a complete hit piece as I was expecting. The writer mostly sticks to the basic facts of Donofrio's case history... does a little editorializing... correct on a good number of the facts, except ...

DONOFRIO IS NOT DISPUTING THAT OBAMA IS A US CITIZEN!

DONOFRIO IS SAYING OBAMA CANNOT BE A "NATURAL BORN CITIZEN," BECAUSE HIS FATHER WAS A BRITISH CITIZEN AT THE TIME OF OBAMA'S BIRTH.

THAT IS WHAT THE CONSTITUTION DEMANDS IN ART 2, SECT 1, CLAUSE 5. NOT JUST A CITIZEN, BUT A NATURAL BORN CITIZEN.

BOTH PARENTS MUST BE U.S. CITIZENS AND THE CHILD MUST BE BORN ON U.S. SOIL.

You can be just a Citizen if you want to be a Senator or a Representative, but NOT for the *unique* office of President. That's what our Framers decided so the President would not have "divided interests" between our nation and another nation.

Please, journalists, PLEASE -- learn the difference! They are NOT the same.

[top 2 toe red]

Bookmark

[thesetruths]

“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…”

A comma has been added after the word "States."

[Tublecane]

That was a surprisingly balanced report. However, given this passage:

“Donofrio, following the rules of the procedure for the Supreme Court, re-submitted the application as an emergency stay in accordance to Rule 22, which states, in part, that an emergency stay can be given to another justice, which is the choice of the petitioner.”

what is up with the headline?

By the way, this case cannot win. I’m pretty sure it’s solid tradition for all children born on U.S. soil, regardless of dual citizenship, to be considered U.S. citizens at birth. Although we don’t technically recognize dual citizenship, we don’t demand that in order to be a citizen you must renounce all other national ties.

[woofie]

“I don’t think that he was a strong enough jurist or legal thinker at the time for that elevation, setting aside the fact that I profoundly disagree with his interpretations of a lot of the Constitution,” Obama said about Thomas....

[robomatik]

the first thing i do in the morning is unravel the mornings copy of "the afro-american newspapers." i cancelled my internet access and subscription to the wall street journal to discover a "fair and balanced" alternative to the media which formerly attempted to corrupt my mind.

did someone say afro?

all kidding aside, i am thankful that Justice Thomas is the one who allowed this to move forward.

[chris37]

God Bless Justice Clarence Thomas, A true American hero and a patriot of America and her constitution.

[TChris]

By the way, this case cannot win. I’m pretty sure it’s solid tradition for all children born on U.S. soil, regardless of dual citizenship, to be considered U.S. citizens at birth.

For the gazillionth time... The Constitution requires that the President be a Natural born citizen, not just a citizen.

Natural Born

[Windflier]

>>> “Thomas’s actions were rare because, by custom, when a justice rejects a petition from his own circuit, the matter is dead. Even if, as can be the case under Rule 22, the matter can be submitted to another justice for consideration, that justice out of respect, will reject it also, said Trevor Morrison, a professor of law at Columbia University School of Law.

Morrison said that Thomas’s actions are once in a decade. “When that does happen, the case has to be of an extraordinary nature...” <<<

I find the above passages to be very illuminating. For one, it affirms to me that Leo Donofrio knows his Justices, so picked Justice Thomas to re-file his petition to, as the one Justice most likely to act on the overwhelmingly urgent implications of the issue.

Secondly, what Professor Morrison had to say about a Justice taking up a petition which had previously been denied by another Justice, as “once in a decade”, and being of an “extraordinary nature” is fascinating, and very encouraging.

Of course, the good Professor had to go on and interject his liberal, and uninformed opinion of the matter, but hey, he also gave me a big hook to hang my hopes on.

[woofie]

wouldn’t a strict interpretation say that the founders were dealing with the situation of citizenship at the time that the constitution was adopted? In other words they were not thinking about 200 years later

[John Valentine]

“Children of illegal aliens, if they are born in the United States, are U.S. citizens. That is in the U.S. Constitution.”

That is most certainly NOT in the U.S. Constitution.

Some people believe it is so because of a common misreading of the 14th Amendment due to a misunderstanding of the holdings of the Wong Kim Ark case. The fact is, this misreading of the 14th turns the amendment straight onto its head, and gives the Amendment precisely the opposite effect of that intended by its authors, Congress, and the ratifying States.

NO case heard in the Supreme Court has EVER held that birthright citizenship is granted under the 14th Amendment to the children of people in the United States illegally. Or legally, for that matter, if not admitted as immigrants.

[dianed]

LOVE your emphasis!

I totally agree that it is become increasingly annoying that people who are completely UNINFORMED about the 5 cases at the USSC are constantly being interviewed for their opinion.

Get the facts or DON’T TALK!@%$#^!!!

http://americamustknow.com/default.aspx

[thesetruths]

wouldn’t a strict interpretation say that the founders were dealing with the situation of citizenship at the time that the constitution was adopted? In other words they were not thinking about 200 years later

I think they definitely were thinking about both scenarios, since they mentioned the exception to the natural born rule being a citizen at the time of adoption.

[dianed]

Are you still confused on the citizen part?

[television is just wrong]

ditto, bookmark. OMG, hope this can work out.

[Chet 99]

Obama either was a natural born citizen at the time of birth or he is an illegal alien who should be deported (because he never went through the naturalization process). Take your pick.

[mountn man]

wouldn’t a strict interpretation say that the founders were dealing with the situation of citizenship at the time that the constitution was adopted? In other words they were not thinking about 200 years later

That would apply if you thought of the Constitution as a living document.

If you do any research into the Constitution, it becomes VERY apparent that the founding fathers put a lot of thought into the foundation of our country, for its future.

These men, though maybe 200 years ago, were by no means backwards nubes. In fact just the opposite, I'd say that by todays standards they'd be considered geniuses.

I think they'd also be appalled at where our country is today, and each and everyone would probably race to take up arms, to reverse what our country has become.

They did not take their responsibilty lightly. Unlike most of us today (including myself).

[Chet 99]

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

If you’re born in the United States, you are a citizen of the US. Period.

[pepperhead]

I find the above passages to be very illuminating. For one, it affirms to me that Leo Donofrio knows his Justices, so picked Justice Thomas to re-file his petition to, as the one Justice most likely to act on the overwhelmingly urgent implications of the issue.

Maybe Donofrio was thinking Thomas didn't like what 0bama had to say about him at Saddleback.

[BP2]

>>> wouldn’t a strict interpretation say that the founders were dealing with the situation of citizenship at the time that the constitution was adopted? In other words they were not thinking about 200 years later

No, that would be a looser interpretation - or Revisionism. You know like, "our Framers didn't understand the crime we'd have today. We don't need that part in the 4th Amendment about Search and Seizure anymore. If our police need to look in a house that may have drugs, they can kick the door down and confiscate the evidence to check it back in their CSI lab without cause, and without a warrant. After all, 200 years ago, they did not know the problems we'd face today...

Unfortunately, last time I checked, the Constitution does not have lungs or a heartbeat, i.e., it's NOT a living document.

[Windflier]

Maybe Donofrio was thinking Thomas didn't like what 0bama had to say about him at Saddleback.

It's tempting to think that, but I think that Justice Thomas is looking at the larger implications first and foremost.

But, wouldn't it be deliciously ironic if Justice Thomas is directly responsible for throwing Obummer back on the street where he belongs?

I'll bet the irony of this isn't being lost on Barry at this very moment.

[twitch] - [twitch] - [twitch]...

[Windflier]

A comma has been added after the word "States."

Damn, you're good!

[thesetruths]

But it CAN be changed through ammendment.

[HarleyLady27]

I like the way you think!!!

[Windflier]

By the way, this case cannot win. I’m pretty sure it’s solid tradition for all children born on U.S. soil, regardless of dual citizenship, to be considered U.S. citizens at birth.

You're correct about the automatic granting of US citizenship, but that's not what this case is about. It's about Natural Born Citizenship

There is a great deal of difference. Only a Natural Born Citizen can become President. For that, you have to be born on US soil, to two US parents.

So yes, the case IS going somewhere. Justice Thomas would not have taken it otherwise.

[Chunga]

Only a Natural Born Citizen can become President. For that, you have to be born on US soil, to two US parents.

Where did you get your definition of Natural Born Citizen?

[Bronwynn]

I found this at http://grou.ps/zapem that’s been covering the Donofrio v. Wells case from NJ that has now made it to the United States Supreme Court. They will decide on 12/5 if they intend to hear the case against McCain, Obama and Calero as being ineligible for the POTUS per the US Constitution.

Apparently they’re having a vigil at the courthouse that on friday. I doubt it will be on the news though. None of this has been. Well, the Star Ledger did want an interview with Donofrio. I haven’t heard anything about that yet. Will check. Here’s the link for the vigil.

http://www.freedommarch.org/Volunteer.html#SCOTUS

Pass it on.

[Windflier]

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Don't cherry pick the language of the Constitution.

The children of illegal aliens are most certainly NOT "subject to the jurisdiction thereof", and are NOT US citizens by circumstance of birth on American soil.

[BP2]

What?? You mean Barack is not Constitutionally-qualified to be President?

That's not fair!!!

[Windflier]

You're correct about the automatic granting of US citizenship...

Little correction here, to my statement above.

US citizenship it's not actually "automatic", but it is true that it is being given to children born of illegal aliens. This is entirely due to mis-interpretation of the 14th Amendment.

[calenel]

For the gazillionth time, ‘natural born’ is defined as ‘having a status or condition from birth’ and nowhere in US Law or the Constitution is it redefined. It doesn’t matter if Obama had or has citizenships in a hundred other countries, so long as he had US citizenship at birth. While multi citizenship might be undesirable it is not a Constitutional disqualifier. There is no ‘citizen at birth but not natural born’ class of citizen because ‘citizen at birth’ or ‘having citizenship at birth’ is the same as ‘natural born citizen’. The term ‘natural born’ came into the language 200 years before the COTUS was written. If another definition had been created by the time the COTUS was written or even shortly thereafter, you can be certain it would have made it into the dictionary by now, another 200 years down the road.

[Windflier]

Where did you get your definition of Natural Born Citizen?

Sorry that I can't cite the exact source, but one of our legal eagles posted data about this definition, with supporting US historical references today sometime. It was on one of the bc threads.

[Bronwynn]

Audrey Singer has to be the dumbest rock in the pile.

No one is arguing that Obama may or may not be a “citizen”. Donofrio is saying that McCain, Obama and Calero are ALL not “natural born citizens”.

Big difference there ya idiot intellectual!

[BP2]

What's also true is that Donofrio can now prove by case law that if a person gains US Citizenship via "citizenship by statute," like Obama did, by default, that person CANNOT be a "natural born citizen."

That is fact and will probably disqualify McCain too, who was born in Panama.

[Bronwynn]

By the way, ladies and gentlemen, ABC twisted this story too, copying only parts from what the OP posted.

Have at it, you can comment on this one. It wasn’t written by MSNBC where they only take comments they like: http://www.abc2news.com/news/local/story.aspx?content_id=6839c2d7-0ecc-4319-b732-ebef749a71b1

[Cvengr]

I wonder how many other candidates might have campaigned for the office had merely citizenship been the minimal requirement. The present Governor of California comes to mind.

[Bronwynn]

I don’t if you’ve seen this article, but this is proof that Obama and McCain KNEW, back in April, they weren’t natural born citizens. Check this one out. They passed a Senate resolution on it! A non-binding one, but you can see where they were heading to go, definitely:

http://grou.ps/zapem/wiki/23460

[Windflier]

There is no ‘citizen at birth but not natural born’ class of citizen because ‘citizen at birth’ or ‘having citizenship at birth’ is the same as ‘natural born citizen’.

I encourage you to keep bringing this interpretation of Natural Born citizenship up to the group. I'm not educated sufficiently on the historical definitions of the phrase, or the exact references to it by The Founders, but there are some folks on the board who are very well versed in this who might have a lively conversation with you about it.

From what I've been able to gather in my readings on the subject, the Framers of the Constitution wanted to ensure that the office of President was closed to any who did not have a complete and "natural" affinity and loyalty to this country, and no other, either through location of birth, or through parentage. It was considered that only a person born on US soil, to two American parents would have a natural, un-divided loyalty to America.

So goes the theory behind the construction of that phrasing.

[calenel]

"If you’re born in the United States, you are a citizen of the US. Period."

Unless you are not 'subject to the jurisdiction thereof' which applies to only four or so categories of people:

• Children of diplomats, exempted by treaty
• Children born to Indians and subject to Tribal law, again, by treaty
• Children of hostile occupying forces (La Raza?)
• Transient persons such as those on ships traversing US Territorial waters or in planes in US airspace.

Everybody else is 'subject to the jurisdiction' of the US, e.g. no diplomatic immunity

[Chet 99]

Schwarzenegger is a naturalized citizen.

You are either a natural born citizen, naturalized citizen, or not a citizen at all.

Neither McCain nor Obama have gone through the naturalization process. Thus, if they are not natural born citizens, they are in fact ILLEGAL ALIENS.

[calenel]

"For that, you have to be born on US soil, to two US parents."

What law says that? It certainly isn't defined that way in the COTUS.

[FFranco]

Obama’s mother was under 21 when he was born and his father was not a US citizen. That’s why he’s not a natural born citizen.

[JennysCool]

That is fact and will probably disqualify McCain too, who was born in Panama.

Not at all. He was born to two Americans in what was an American protectorate.

The difference with Obama is we really don't know what nationality either parent was, nor where he was actually born.

We might know that, but he's spent about half a mil on lawyers to keep it secret.

That would seem to be, um, a cause for some concern.

[Bronwynn]

Where do you get your information from Chet99?

I’ve listened to everyone of Donofrio’s tapes and he’s cited the law where it states you have to be a natural born citizen to take POTUS. And the law where it states natural born MEANS to have been born of two American citizens.

Go listen to him talk before you speak.

http://grou.ps/zapem - all the audios are in the Radio/Audio section on that website, but there’s two good ones on the front page. He’s gone over this a zillion times, yet few people have educated themselves at all to take the time to listen to him.

[calenel]

"The children of illegal aliens are most certainly NOT 'subject to the jurisdiction thereof', and are NOT US citizens by circumstance of birth on American soil."

If they are not 'subject to the jurisdiction thereof', how can they be illegal aliens? Are they all diplomats from 'Illegal Alienistan' with diplomatic immunity?

[rfreedom4u]

When they examine his BC, if they find it is not valid, Thomas will be screwed for the rest of his life. He will be seen as a traitor to his race. I would fear for his life as there are some who would wish him harm for enforcing our constitution.

Thank God for true patriots.

[Big_Monkey]

....The children of illegal aliens are most certainly NOT “subject to the jurisdiction thereof”, and are NOT US citizens by circumstance of birth on American soil.....

Anyone in the US, with extremely limited exception, is “subject to the jurisdiction therof.”

ANYONE born on sovereign US soil is a citizen without qualification. Now, if they can be President or not just may be litigated for the first time in over 225 years shortly.

Right, wrong or indifferent, children of illegal immigrants are citizens of the US, if born in this country.

[Big_Monkey]

I wish I had read further. Your post sums it up perfectly.

Sorry!

[Windflier]

I wonder how many other candidates might have campaigned for the office had merely citizenship been the minimal requirement. The present Governor of California comes to mind.

We've got a few different classes of citizen here. Arnold is a "made" citizen, in that he is naturalized. Literally "made natural".

Then, there are people who merely qualify as a US citizen. These are people, who through the circumstance of their birth, are US citizens, but not Natural Born Citizens, such as American children born of parents in foreign countries, and not on the soil of a US embassy, or military base. I've got two brothers who fall into that category.

Then, you've got children born to one US parent, and one foreign parent on US soil, as is the purported case with Obama. Donofrio's case contends that he cannot be a Natural Born Citizen because of the citizenship of his father, who was a Kenyan national and subject of Great Britain.

Obama's personal case is even tougher, because under the citizenship laws at the time, his mother could not have conveyed US citizenship to him, because she had not lived for a period of ten years in the United States, five of them being after the age of 14. She was three months shy of her 19th birthday when Obama was born.

The hard-core Obots don't give a damn about any of our citizenship laws, or the US Constitution. They want their Messiah, no matter what laws have to be broken to anoint him Emperor.

[Bronwynn]

Bah, sorry Chet. I think I responded to the wrong person, you.

I’m going to bed. This is making me dizzy.