Free Republic
Browse · Search
News/Activism
Topics · Post Article

To: Charlie Fairbanks
I do think that it is highly unlikely that the SCOTUS will grant cert. in the Donofrio case.

There are a whole bunch of reasons for that, but that's my bottom line. I also generally am skeptical that Obama would ever be found ineligible. (Some of my skepticism comes from the fact that I would never draw such an important conclusion without it first having been comprehensively and expertly "briefed." The law and facts in this situation potentially are very convoluted.)

That said, I agree that there are significant and important issues raised here. Moreover, there apparently is a dangerous omission in our procedures: In short,

(1) no one---much less someone who is competent in the law and in gathering material facts---is responsible for actually verifying the elgibility of a President-select (it apparently is left to party hacks, if done at all); [See Delegate Selection Rules for the 2008 DNC.]

(2) if there are procedures for even paying lipservice to this task (such as the DNC "rules"), the procedures are private, conducted in secret and have no clear standards;

(3) here is no effective way for that process to be challenged;

(4) and there is no legally cognizable remedy.

[more here]

While it may be appropriate to leave most of the burden of vouchsafing the constitutional requirement that the President and VP be "natural born citizens" to the political process, the judiciary (in particular, the SCOTUS) must "help" that process when it is deficient---not by doing the Legislature's job, but by pointing out the deficiency and stating it needs to be fixed.

So my hope here, and the reason I have gotten involved in some of these threads, is that if (as expected) the SCOTUS denies cert., they do more than issue a one-word order. They can deny cert., but still accompany that with a statement expounding on the case.

For example, if they said there were denying cert. because it was the Electoral College's---or, somehow, Congress' responsibility---to verify eligibility and, hint, that requires normal administrative procedures, this would provide a basis to then militate for those procedures to be developed and implemented in this case---or at least in the future.

I don't think the law is clear as to what constitutes a "natural born citizen" in all its permutations. If, however, the SCOTUS denies cert. without comment, there'd be an argument in the future that having a citizen mother and a presumption (based on the short form BC) that one was born in the U.S. is enough.

However, this still would not fix the deficiency in our process. There is where I hope the SCOTUS will weigh in.

If they simply deny cert. without comment, that would not necessarily mean anything as to the *merits* of the case. If they deny cert. because, for example, insufficient facts have been raised or because it's not their job to get involved yet, if they don't say that, this issue likely is dead. If they explain the basis for denying cert. as in the example, however, then people would have greater leverage demanding Congress address the fact that apparently there is no regular way to make an official (and challengable) determination of a President-select's citizenship.

IOW, a one-word denial of cert. doesn't necessarily mean there's no "there" there in the case, but it will be taken that way by the Congress and public.

OTOH, if SCOTUS said something like "we can't and won't make a factual determination on elgibility (the SCOTUS is not a fact-finder), we can only review such a factual determination, but *no determination amenable to review* has been done in this case"---now something like that would get the ball rolling.

What I am hoping for is that the SCOTUS will give guidance that is helpful.

15 posted on 12/04/2008 6:30:44 AM PST by fightinJAG (TWO BIG BUSH TAX CUTS EXPIRE AT THE END OF 2008. Happy New Year, love, President Obama)
[ Post Reply | Private Reply | To 1 | View Replies ]


To: fightinJAG
The end of the constitutional republic?
16 posted on 12/04/2008 6:35:21 AM PST by EternalVigilance (AIPNEWS.com - America's Independent Party: "Peace through superior firepower!")
[ Post Reply | Private Reply | To 15 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson